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Abbott, J.:
The plaintiff, Leonard Ropfogel, appeals from an order holding that funds derived from the rental of real property which was subject to the right of redemption were not subject to garnishment while held by a receiver who was appointed by the trial court to prevent waste, pursuant to K.S.A. 1981 Supp. 60-2414(p).
The parties have stipulated that Ropfogel obtained a judgment ($250,000 plus interest and costs) against the defendants, Paul and June Enegren. June Enegren owned a number of parcels of land which were sold pursuant to writs of execution. Ropfogel purchased the properties at a sheriff’s sale and was issued certificates of purchase therefor. The proceeds from the execution sale did not satisfy the judgment. During the 12-month redemption period, Ropfogel requested the trial court to appoint a receiver to prevent waste, pursuant to K.S.A. 1981 Supp. 60-2414(p), and the trial court complied. The receiver managed the properties and paid such expenses as are authorized by K.S.A. 1981 Supp. 60-2414(p). Ropfogel filed a garnishment against the receiver to attach the rent receipts held by the receiver and due to June Enegren. At the expiration of the statutory redemption period, the trial court terminated the receivership and ordered the remaining rental proceeds paid to June Enegren.
Ropfogel readily concedes that under K.S.A. 1981 Supp. 60-2414(p), rents collected during the redemption period belong to June Enegren. He argues, however, that the properties could be seized and sold in the first instance because they are nonexempt property. He further argues that the judgment creditor could garnish the rents prior to execution. He thus reasons that June Enegren was entitled to the rents which were subject to garnishment prior to the execution sale, and under K.S.A. 1981 Supp. 60-2414(p) she is still entitled to the rents; furthermore, since there is no specific statutory exemption of rents from garnishment during the redemption period, the legislature did not intend to exempt the rental proceeds from garnishment.
Ropfogel seizes on language in International Harvester Credit Corp. v. Ross, 217 Kan. 683, 538 P.2d 655 (1975) as authority for his position. The court in International Harvester considered whether a judgment creditor could garnish the proceeds received by a debtor from the voluntary sale of his homestead when the debtor shows no intent to invest the proceeds in another homestead. Ropfogel recognizes that the Supreme Court was considering an issue entirely different from the one before us; but he argues that the rationale expressed by the Supreme Court, that the legislature would have so expressed had it intended the proceeds from the homestead sale to remain exempt, is applicable to the case before us.
K.S.A. 1981 Supp. 60-2414 provides in pertinent part:
“(a) . . . the defendant owner may redeem any real property sold under execution . . . and shall in the meantime be entitled to the possession of the property ....
“(p) The holder of the certificate of purchase shall be entitled to prevent any waste or destruction of the premises purchased, and for that purpose the court, on proper showing, may issue an injunction, or, when required to protect said premises against waste, appoint and place in charge thereof a receiver, who shall hold said premises until such time as the purchaser is entitled to a deed, and shall be entitled to rent, control and manage the same, but the income during said time, except what is necessary to keep up repairs and prevent waste, and the amount necessary to pay real estate taxes and insurance premiums, shall go to the person who otherwise would be entitled to possession during the period of redemption.” (Emphasis supplied.)
The fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute. State v. Dumler, 221 Kan. 386, Syl. ¶ 1, 559 P.2d 798 (1977). Consideration should be given to historical background, legislative proceedings and changes made in a statute during the course of its enactment, as well as to changes proposed, adopted, or rejected after its enactment and the legislature’s reaction or inaction to judicial interpretation of its intent. Appellate courts should also consider the effect the statute might have under the various constructions suggested. Southeast Kansas Landowners Ass’n v. Kansas Turnpike Auth., 224 Kan. 357, 367, 582 P.2d 1123 (1978); State v. Luginbill, 223 Kan. 15, Syl. ¶ 2, 574 P.2d 140 (1977). Legislative intent is to be determined by a general consideration of the applicable statutes. Insofar as is practicable, a court should reconcile the different provisions so as to make them consistent, harmonious and sensible. Fleming Company v. McDonald, 212 Kan. 11, 509 P.2d 1162 (1973).
The Kansas Supreme Court, in In re Estate of Wood, 118 Kan. 548, 235 Pac. 864 (1925), considered whether the right of redemption and the right of possession of a decedent in a mortgage foreclosure action is subject to sale in a probate proceeding for the payment of the decedent’s debts and costs of administration. The Supreme Court stated it considered the general policy of the legislature to be to exempt the right of possession and right of redemption from seizure by any process, and thus the administrator was entitled to realize the value of the use of the land during the redemption period.
In Capitol B. & L. Ass’n v. Ross, 134 Kan. 441, 7 P.2d 86 (1932), the Kansas Supreme Court considered an argument somewhat analogous to the one Ropfogel makes here; and although the legal issues are different, the language used by the Supreme Court in rejecting the owner’s argument is applicable to the issue we are considering. The Supreme Court stated:
“The right to possession of the property during the redemption period has been held to include the right to rents and profits. [Cites omitted.] .... It has been held that one of the purposes of the redemption statute is not only to give the defendant owner time to redeem, but to enable him to have income, rents and profits from the property during the redemption period to enable him, or assist him, to redeem.
. That construction of the statute [an argument similar to the one Ropfogel makes here; i.e., the owner is entitled to possession and the right to redeem, but that does not mean the rents and profits cannot be taken] would give the defendant owner naked legal rights as distinct from the beneficial rights which would grow out of the rents or profits of the property, and is a construction not consistent either with the purposes of the statute as a whole or with the interpretation previously placed upon it by this court.” 134 Kan. at 442-44.
In Aley v. Schroeder, 144 Kan. 739, 62 P.2d 885 (1936), the Supreme Court considered whether tenants in common, who as mortgagees had foreclosed against their cotenant and purchased the property at a sheriff’s sale, could withhold any portion of the rents accrued during the redemption period for the avowed purpose of paying the defaulting cotenant’s proportionate share of the taxes, insurance and repairs on the mortgaged real estate. The Supreme Court considered the mortgagees to be creditors and reasoned that if they had obtained a judgment they could not have levied on the mortgagor’s share of the rent, stating:
“It has been the studied policy of our legislature and our courts to deal liberally with execution debtors, as is evident from the statutes above noted, and many decisions of this court, of which the following are examples: [cites omitted]. In view of the public policy of this state, appellants cannot be permitted to do indirectly [withhold mortgagor’s share of rents received during redemption period] what they are prohibited from doing directly [seize by levy].” 144 Kan. at 741.
It appears our Supreme Court has taken the position that an individual’s right of redemption is an exception that may not be levied upon. Southwest State Bank v. Quinn, 198 Kan. 359, 362-63, 424 P.2d 620 (1967); Bankers Mortgage Co. v. Robson, 123 Kan. 746, Syl. ¶ 7,256 Pac. 997 (1927); In re Trinkle v. Chase, 122 Kan. 781, 253 Pac. 210 (1927).
As we construe the Supreme Court cases, legislative history and the legislature’s reaction or inaction, it has been the public policy of this state to steadfastly protect a debtor and the debtor’s family by granting them a statutory redemption period. The debtor is given the right of possession during the redemption period and the rents and profits derived from the mortgaged property during that period are exempt from seizure by any creditor not authorized to levy by the redemption statute (K.S.A. 1981 Supp. 60-2414). We see no evidence of any intent on the part of the legislature or the Supreme Court to change that policy. Thus, the trial judge did not err in holding that the rental income in the hands of the receiver are not subject to garnishment by Leonard Ropfogel.
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Bullock, J.:
This is an appeal from a summary judgment awarding professional surveying fees, uncontested in amount, to plaintiff engineers for surveying work done on property owned by defendant estate. The action was originally filed against both the estate and Robert C. Johnson, the attorney for the estate who allegedly ordered the survey. The judgment below dismissed Johnson personally as a party and found generally in favor of the plaintiff on the theory of quasi contract. The estate has appealed and plaintiff has cross-appealed with respect to the dismissal of Johnson, limiting its request, however, to reinstatement of Johnson as a party only if the summary judgment against the estate is overturned on appeal.
The only disputed fact concerns whether Johnson actually ordered the survey to be done or merely solicited an estimate of the cost of such a survey for presentation to and authorization by the administrator. In the estate’s brief to this court, and at oral argument, Johnson, on behalf of the estate, represented that an affidavit was filed in the trial court, in response to plaintiff’s motion for summary judgment, to the effect that Johnson had merely sought a price quotation from plaintiff and that Johnson expressly told plaintiff that the administrator would have to personally authorize any actual work. Unfortunately for the estate, no such affidavit appears in the record on appeal and under familiar appellate rules we are bound to assume there was none.
Laying aside all questions concerning the missing affidavit and its contents, there is no dispute concerning the events which transpired subsequent to the initial contact between Johnson and plaintiff. A recitation of these undisputed facts follows.
On or about September 11, 1979, plaintiff wrote Johnson a letter regarding difficulties they were having in completing the survey for the estate. Johnson made no reply to this letter. On January 11 and 23, 1980, Johnson called plaintiff to request delivery of the survey for use in a possible sale of the estate’s land. The survey was subsequently delivered by plaintiff to Johnson and accepted by him on January 28, 1980.
Upon presentation of a bill for $4,125, the survey allegedly first came to the attention of the administrator. The administrator, on behalf of the estate, declined to pay the bill.
Plaintiff filed suit against the estate on the theory that Johnson had acted throughout as the legal agent for the estate, and, in the alternative, against Robert C. Johnson, personally, should it be determined that he had not acted as the legal agent for the estate in his dealings with plaintiff.
On September 4,1981, the trial court granted plaintiff summary judgment in quasi contract against the estate. Johnson was dismissed as a party and the case was set for trial on damages alone. On September 11, 1981, the estate stipulated the value of the services performed was $4,125.
Two questions are raised by the estate for our review.
1. The first question concerns whether, as attorney for the estate, Johnson was an agent of the estate and its administrator with sufficient authority to bind the estate to pay for the cost of the surveying work performed by plaintiff. In our view, the answer to this question is yes. In Miotk v. Rudy, 4 Kan. App. 2d 296, 300, 605 P.2d 587, rev. denied 227 Kan. 927 (1980), we said that, although an attorney cannot settle a case without the client’s express authorization:
“It is clear that the relation of attorney and client is one of agency and the general rules of law that apply to agency apply to that relation. Pearcy v. First National Bank, 167 Kan. 696, 208 P.2d 217 (1949). The law recognizes two distinct types of agency, actual and ostensible or apparent. Brown v. Wichita State University, 217 Kan. 279, 286, 540 P.2d 66 (1975), vacated in part on other grounds 219 Kan. 2, 547 P.2d 1015 (1976). The evidence is uncontradicted that Logsdon lacked actual authority to settle plaintiff’s case and there is no issue in that regard. However, the liability of the principal for the acts and contracts of his agent is not limited to such acts and contracts of the agent as are expressly authorized, necessarily implied from express authority, or otherwise actually conferred by implication from the acts and conduct of the principal. All such acts and contracts of the agent as are within the apparent scope of the authority conferred on him, although no actual authority to do such acts or to make such contracts has been conferred, are also binding upon the principal. Apparent authority, or ostensible authority as it is also called, is that which, though not actually granted, the principal knowingly permits the agent to exercise or which he holds him out as possessing. Accordingly, an apparent agent is one who, with or without authority, reasonably appears to third persons to be authorized to act as the agent of another. Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 268, 553 P.2d 254 (1976), quoting Greep v. Bruns, 160 Kan. 48, 55-56, 159 P.2d 803 (1945).”
It is elementary that an agent contracting on behalf of a principal binds the principal if the contract is authorized. As previously noted in Miotk, the law recognizes two principal types of agency authority, actual and apparent.
A review of the authorities reveals that the apparent authority of an agent to bind the principal rests upon words or conduct of the principal which leads the third party dealing with the agent to reasonably believe the agent’s authority is sufficient to cover the transaction in question. In some cases, of course, the words or conduct of the principal are overt and explicit. In other cases, the mere relationship between the agent and principal or the title conferred upon the agent by the principal is sufficient to constitute a representation of some authority. Illustrative cases include the so-called “powers of position,” examples of which are: general manager (Hull v. Manufacturing Co., 92 Kan. 538, 141 Pac. 592 [1914], and Western Advertising Co. v. Crawford, 128 Kan. 145, 276 Pac. 813 [1929]); president (Solomon Rld. Co. v. Jones, 30 Kan. 601, 2 Pac. 657 [1883]); and partner (Belluomo v. KAKE TV & Radio, Inc., 3 Kan. App. 2d 461, 596 P.2d 832, rev. denied 226 Kan. 792 [1979]). Into this category, the relationship of attorney-client falls.
In our view, the mere appointment of Johnson as attorney for the estate clothed him with sufficient apparent authority to obligate the estate for services, such as the survey, which were routinely and directly connected with the administration of the estate. This apparent authority, conferred by the employment of the attorney to represent the estate, is precisely the type of authority recognized in Reimer v. Davis, 224 Kan. 225, 580 P.2d 81 (1978) (an attorney has apparent authority to control procedural matters incident to litigation) and Smith v. Ward, 161 Kan. 453, 169 P.2d 93 (1946) (an attorney who has recovered judgment for a client has authority, by virtue of his employment, to receive payment and enter satisfaction of that judgment). In our view, these cases are in accord with the better reasoned of the general authorities recognizing the apparent authority of an attorney to obligate the client to pay for expenses incurred incidental to litigation, such as witness, detective, appraiser, stenographer, expert, and printing fees. See 7 C.J.S., Attorney & Client § 140, p. 180, and Annot., 15 A.L.R.3d 536.
Accordingly, we hold Johnson was the agent of the estate and, as such, clothed with sufficient apparent authority to bind the estate to pay for surveying work performed for the estate.
2. The second question concerns whether under the facts before us, Johnson, as agent, did in fact bind the estate to pay for the surveying services performed by plaintiff.
Once again laying aside the question of whether Johnson actually ordered the work in question (or merely sought a price quotation for the same), there is no dispute that Johnson, as agent for the estate:
a. received a report of work in progress from plaintiff, to which no objection was made;
b. twice demanded delivery of the survey for the use of the estate in negotiating the sale of the estate’s property; and
c. accepted and retained the completed survey when it was delivered to him by plaintiff in January of 1980.
Under these facts, we have no hesitancy in holding as a matter of law that the conduct of Johnson, when viewed by a reasonable person in the position of plaintiff, would be reasonably understood to constitute an undertaking by the estate to pay for that which it demanded and received. Even if we assume Johnson initially advised plaintiff that the personal authority of the administrator would be required before the work could proceed, Johnson’s subsequent conduct, again when viewed by a reasonable person in the position of the plaintiff, could only be taken to indicate he had obtained that authorization.
The trial court enforced Johnson’s undertaking on behalf of the estate under the legal theory of quasi contract. Quasi contract was defined in Minnesota Avenue, Inc. v. Automatic Packagers, Inc., 211 Kan. 461, Syl. ¶ 1, 507 P.2d 268 (1973), as follows:
“Quasi contracts are contracts implied in law. They are not true contracts, but are obligations imposed by law for the purpose of doing justice without reference to the intention of the parties.”
In the opinion of the trial court, the application of this legal principle to the facts before us required the judgment rendered. We concur.
In summary, we hold that an agent who, with apparent authority, demands, receives and accepts services on behalf of the principal, obligates that principal (in quasi contract, if no actual contract can be proved) to pay for those services.
Inasmuch as we affirm the judgment of the trial court below, plaintiff’s cross-appeal is moot.
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Swinehart, J.:
This is an appeal by Ronald and Diane Lett from the judgment of the District Court of Labette County severing the parental rights of Ronald Lett to his daughter LaRonda Lett, and Diane Lett’s parental rights to her children LaRonda Lett and Terrance Jackson.
Terrance Jackson, born March 23,1976, is the illegitimate child of Diane Lett and Charles Lamb. LaRonda Lett, born August 13, 1978, is the child of Diane and Ronald Lett, who were married August 11, 1978.
On December 5, 1978, LaRonda was found to be a deprived child pursuant to K.S.A. 1980 Supp. 38-802(g)(3), on the basis of evidence to the effect that Ronald Lett had physically abused the child on November 3, 1978, when she was three months old. The evidence at that hearing indicated that the child had been severely beaten. Ronald admitted to beating LaRonda because of anger and self-pity, and stated that he was getting help for his mental problems. LaRonda was born with a physical birth defect which affected both feet and the hips, and prevents her from being very mobile. Upon finding that LaRonda was deprived, the trial court ordered that she remain in the care, custody and control of the Kansas Department of Social and Rehabilitation Services, and that should the child be placed with Diane Lett, the natural mother, the trial court was to be notified immediately if Ronald Lett resumed living with Diane. The court further ordered both parents to participate in any counseling or parenting education classes that the SRS deemed, beneficial.
LaRonda was subsequently placed back in Diane Lett’s home by the SRS under its supervision. The SRS urged Diane to obtain independent living quarters, enroll Terrance in Head Start, complete the STEP parenting program, prepare a budget she could live within, and improve her housekeeping skills. During the following two years, Diane completed the STEP program after considerable difficulty and reluctance, and she obtained independent living quarters. She failed, however, at adhering to a budget, enrolling Terrance in Head Start, and improving her housekeeping.
Shortly after the December 5, 1978, determination that LaRonda was a deprived child, Ronald assaulted a man and was thereafter voluntarily admitted into the Osawatomie State Hospital where he received treatment for his inability to control his temper. Ronald was released from Osawatomie in April of 1979, and returned to Parsons where the SRS asked Ronald to seek marriage counseling or more, if needed. Ronald then started treatment with Dr. Jack Martin, a psychologist. He continued treatment with Dr. Martin through May of 1979, a period of two months, then dropped out of contact. He next visited Dr. Martin twice in October of 1979 after two violent episodes with Diane. The evidence reveals that in the first episode, Ronald hid in Diane’s home and confronted her when she returned home from a Jehovah Witnesses’ meeting. On the second occasion, Ronald took a stick and broke out a window, entered Diane’s home and cornered her and Terrance. Ronald knocked Terrance out of Diane’s arms and chased Diane outside. Ronald then proceeded to kick her in the stomach. Criminal charges were filed and Ronald spent three months in jail as a result of this incident. He subsequently resumed treatment with Dr. Martin in March of 1980, but discontinued the visits soon thereafter, in May of 1980.
On October 14,1980, a petition was filed by the Labette County Attorney alleging Terrance Jackson to be a deprived child and praying for the severance of parental rights of Diane Lett and Charles Lamb. On November 3, 1980, an amended petition was filed on the same grounds, adding LaRonda Lett and her father Ronald Lett.
Hearings were held on the amended petition on November 17, November 25, and December 3, 1980. On December 4, 1980, the trial court found all three parents unfit and severed their parental rights. The children were committed to the custody of the SRS which then placed them in a foster home where they have remained since. Diane and Ronald Lett appeal the trial court’s decision.
The Letts’ first contention of error is that the trial court’s findings and conclusions are inadequate to permit meaningful review. After tracing the procedural history of this action in its journal entry, the trial court concluded:
“Now on this 4th day of December, 1980, the above entitled matter comes on for final ruling on the issue of severance of parental rights.
“The court finds and adjudges the putative father of Terrance Jackson, Charles Lamb, the natural father of Laronda [sic] Lett, Ronald Lett and the natural mother, Diane Lett, unfit persons to have the custody of the said deprived children, and are hereby adjudged as such.”
The Letts contend that the trial court’s findings and conclusions are inadequate for two reasons. First, the trial court never specifically found the children to be deprived; it just refers to them as “said deprived children.” And second, the Letts contend that the findings are too sparse and incomplete.
Supreme Court Rule No. 165, 228 Kan. Ixxxi, provides in part:
“In all contested matters submitted to a judge without a jury including motions for summary judgment, the judge shall state the controlling facts required by K.S.A. 60-252, and the legal principles controlling the decision.” (Emphasis supplied.)
It is readily apparent from the journal entry that the trial court in the present case did not explicitly comply with the above rule. The trial court failed to set out the facts which would support a finding of “deprived” and failed to state the additional acts of parental neglect which were the bases of the finding of unfitness which resulted in the parental severance. Appellants, however, did not raise this issue at the trial court level. In Burch v. Dodge, 4 Kan. App. 2d 503, Syl. ¶ 2, 608 P.2d 1032 (1980), this court held:
“A litigant must object to inadequate findings of fact and conclusions of law at the trial level so as to give the trial court an opportunity to correct them, or an appellate court may presume the trial court found all the facts necessary to support the judgment.”
The court went on, however, to hold at Syl. ¶ 3:
“The requirements of K.S.A. 60-252 and Supreme Court Rule No. 165 (225 Kan. lxxii) are in part for benefit of the appellate courts in facilitating appellate review; and when the record on review will not support a presumption that the trial court found all the facts necessary to support the judgment, the case will be remanded for additional findings and conclusions even though none of the parties objected either in the trial court or in this court.” See also Celco, Inc. of America v. Davis Van Lines, Inc., 226 Kan. 366, Syl. ¶ 2, 598 P.2d 188 (1979):
“In the absence of an objection first made in the trial court, omissions in findings will not be fatal to a judgment since the trial court is presumed to have found all of the facts in issue necessary to support the judgment.”
Since the trial court did not make adequate findings and conclusions, it is this court’s function in the present case to review the record to see whether it supports a presumption that the trial court found all the facts necessary to support the judgment. Burch v. Dodge, 4 Kan. App. 2d 503.
A review of the record in the present case (which commenced with the original deprived hearing for LaRonda on December 5, 1978, and continued until the final hearing herein in December of 1980), reveals that the record supports a presumption that the trial court found all the facts necessary to support its judgment. Clear and convincing evidence was presented which supports a finding that Diane Lett was an unfit parent. The testimony of the social worker for the SRS assigned to oversee the Lett case was based on 108 visits made to the Lett home and indicates that Diane simply made little effort to, or was not sincerely interested in fulfilling her SRS agreement which had as its ultimate goal the improvement of Diane’s ability to provide for her children in a fashion which would at least meet society’s bare minimum standards of care and supervision.
The record further shows that the testimony was clear and uncontroverted concerning Charles Lamb, Terrance’s natural father. The record indicates that for more than three years he had failed totally in every respect to provide Terrance with parental control, care, subsistence and education. This evidence as to Charles Lamb not only supports the finding of his unfitness, but also is a factual matter which would support a finding that his individual neglect caused this child to be deprived within the meaning of K.S.A. 1980 Supp. 38-802.
The record also supports a presumption that the trial court found all the facts necessary to support its holding that Ronald Lett was an unfit parent. Ronald contends that the trial court’s finding that he was an unfit parent is not supported by clear and convincing evidence, and therefore the trial court erred in severing his parental rights to LaRonda. Diane Lett does not challenge the sufficiency of the evidence presented concerning her unfit ness. In reviewing the evidence, the appellate court will consider the evidence in the light most favorable to the party who prevailed at the trial court level. In re Bachelor, 211 Kan. 879, 508 P.2d 862 (1973).
Any consideration of Ronald’s fitness to parent LaRonda, a severely handicapped infant, should start back in December of 1978, when the trial court determined, and Ronald admitted, that he physically abused LaRonda. The evidence reveals that Ronald had battered three-month-old LaRonda in such a fashion that when Diane discovered the child, LaRonda’s head was severely swollen and she was scratched, bruised and bloody. Ronald then defied court orders and the directions of the SRS not to make unsupervised family visits, and the results were the physical attacks on Diane and Terrance by Ronald. These incidents occurred after Ronald had spent time in the Osawatomie State Hospital after having attacked a man in Parsons. Ronald’s inconsistent participation in Dr. Martin’s therapy program has already been outlined above. Ronald claims to be in better shape now and better able to control his temper, but when on direct examination he was asked whether he had been able to control his temper since he quit taking the medication which was prescribed to enable him to control his temper, he responded: “A little bit, but not much.” Later when asked, “Do you feel, Mr. Lett, that you can control your temper now?” Ronald responded: “That’s not so easy for me to say ... I don’t want to lose my control on LaRonda and Terrance; but so far I have not lost my temper.” Ronald also testified that he considered his temper still his “major problem.” When the children do things to aggravate him, he testified that he goes outside and beats his head against a tree to get all the anger out of his system and then he walks around the block a couple of times, and he feels in control when he returns. The court also heard testimony concerning his poor money management and the fact that while he lived with Diane against court order, he allowed the house to be filthy and infested with cockroaches, rodents and other vermin.
From this testimony we find that the trial court had clear and convincing evidence to find that Ronald was an unfit parent and unable to take care of LaRonda.
The record also supports a presumption that the trial court made the necessary findings concerning the children’s deprived status. While the trial court did not specifically find that Terrance was deprived, it did refer to the children as “said deprived children.” The court in an earlier proceeding had already found LaRonda to be deprived based on physical abuse. The trial court heard the testimony of Dr. Jack Martin who stated that if things remained as they were, the children would not reach their full potential. Dr. Martin also classified Terrance as a disadvantaged child. The evidence reveals that the children were often left unsupervised, were inappropriately clothed at times and were poorly disciplined. The situation showed little improvement from the first deprived child hearing in 1978, and the impending birth of Diane’s third child would undoubtedly not improve the status of the other two children.
While it is unfortunate that the trial court failed to enter findings of fact and conclusions of law as required by Supreme Court Rule No. 165, 228 Kan. lxxxi, we find that the record supports a presumption that the trial court made the necessary findings to support its judgment. Burch v. Dodge, 4 Kan. App. 2d 503.
The Letts also contend that the trial court erred in not exploring alternatives before severing parental rights. Appellants cite to In re Atwood, 2 Kan. App. 2d 680, 587 P.2d 1 (1978), for the proposition that the trial court must find that under no reasonable circumstance can the welfare of the child be served by a continuation of the parent-child relationship and the trial court must explore and specifically eliminate alternative remedies before imposing the drastic remedy of parental severance. In In re Brooks, 228 Kan. 541, 550-551, 618 P.2d 814 (1980), the court modified the least restrictive alternative doctrine as was set out in Atwood:
“Without expressly so stating, the court in Atwood acknowledged the doctrine of the least restrictive alternative and judicially construes it into the statute. We approve the cited language of Atwood except for the following sentence: ‘This test requires the court to explore and specifically eliminate alternative remedies before imposing the drastic remedy of parental severance.’ In many areas of the state there are dozens of agencies and programs designed to assist families in resolving their problems. To require a court specifically to explore, consider and reject each such program prior to termination is unrealistic and could be disastrous. Certainly if a particular program is proposed as an alternative the court should give careful consideration to the proposal. Most of the programs have much in common and to be successful in any of these programs parents must cooperate with the agency, must keep appointments, must have a sincere desire to improve their family life, and must be willing to accept counseling.
“We conclude the better test to be: The court should carefully consider any particular alternative remedy proposed by an interested party in the case, and if rejected the court should state its reasons for such rejection. The drastic remedy of termination of parental rights should not be utilized unless the court is satisfied there is no realistic alternative and so finds.”
In the present case, no less restrictive alternative was proposed to the trial court, so no rejection of the alternatives was required. We note, however, that several alternative solutions were actually tried before the severance hearing, and failed. The parties had been working closely with SRS and proffered counselors for the two years subsequent to LaRonda’s deprived child hearing. Testimony based on over one hundred home visits was heard to the effect that the SRS did everything possible to remedy the situation and had limited success. We hold that the trial court did not err in severing appellants’ parental rights.
Affirmed. | [
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Foth, C.J.:
This is an extradition habeas corpus case in which petitioner appeals from an order dissolving the writ and remanding him into custody for extradition to Texas.
On June 20, 1977, petitioner pleaded guilty in Texas to two charges, one a weapons charge, the other burglary. The Texas court sentenced him to two to fifteen years on one count and five to fifteen years on the other, to run concurrently with a prior federal sentence.
He was released to federal authorities who transferred him to the federal penitentiary at Leavenworth, Kansas. Upon his release from that institution in December, 1980, Texas sought his return by its governor’s requisition to serve the unexpired balance of the Texas sentences. The governor of Kansas issued his warrant, but the extradition proceedings were halted by the institution of this action.
Petitioner’s primary point on appeal is that Texas waived its jurisdiction over him by voluntarily relinquishing him to the federal authorities. The lack of merit of such a contention was last demonstrated in Hedge v. Campbell, 192 Kan. 623, 389 P.2d 834 (1964). The facts of that case are set out in the Syllabus:
“In a proceeding for a writ of habeas corpus, the record shows the following: Petitioner (plaintiff) was convicted of a felony in a California state court. The sentence imposed was ordered to run concurrently with any federal sentence he might receive. He was released to federal authorities for prosecution and was convicted of a federal offense, and was imprisoned in the federal penitentiary in Leavenworth. Upon completion of his federal sentence the sentence imposed by the California state court had not expired. The governor of the state of California made written demand to the governor of this state for the arrest and return of plaintiff to California upon the completion of his federal sentence. Pursuant thereto, the governor of this state issued a warrant directing that upon plaintiff’s release by the federal authorities he be delivered over to a named agent of the state of California for return to that state to complete the sentence imposed by the California state court. Pursuant to the command of the governor’s warrant the sheriff of Leavenworth county took plaintiff into custody for delivery to the California authorities. Plaintiff then filed a petition for a writ of habeas corpus, alleging, among other things, that the state of California no longer had jurisdiction over him. After a full hearing the district court of Leavenworth county granted the writ and ordered the release of plaintiff. Defendant sheriff appealed.
Held: Under the facts of the case and for reasons all of which are fully set forth in the opinion, plaintiff was not entitled to be released and the petition for a writ of habeas corpus should have been denied.”
The reasons set forth in the opinion why he was not entitled to release were:
“[W]here one commits an offense in the demanding state and thereafter goes or is taken into another or asylum state, his motives in leaving or the reasons why he left the demanding state are immaterial.” 192 Kan. at 627-8, citing In re Martin, 142 Kan. 907, 909, 52 P.2d 1196 (1935).
“ ‘Under numerous decisions, within the meaning of such terms as used in the constitution and the criminal code, a person is “charged with crime’ ” where prosecution has been initiated, pursued to judgment of conviction and sentence has not expired [citing]. He is also a “fugitive from justice.” ’ ” 192 Kan. at 628, quoting Tines v. Hudspeth, 164 Kan. 471, 477, 190 P.2d 867 (1948).
The contention is not well taken that when a Kansas prisoner “ ‘was released by the Kansas authorities to the federal authorities to be prosecuted for violation of the Dyer act the state of Kansas thereby lost its jurisdiction over him to return him to the institution as a parole violator.’ ” 192 Kan. at 628, quoting from Holden v. Hudspeth, 168 Kan. 194, 196, 211 P.2d 64 (1949).
In summary:
“The statute, G.S. 1949, 62-729 [predecessor of K.S.A. 22-2703] is in the disjunctive, and provides for two alternative showings by the demanding state in order to secure extradition — that is, that the person is a fugitive from justice, or, having been convicted and sentenced, has escaped from confinement or has broken the terms of his bail, probation or parole. Plaintiff had committed a crime in the state of California. The fact authorities of that state turned him over to the federal authorities for prosecution did not deprive California of jurisdiction over him when he completed the federal sentence. The fact he came into this state involuntarily makes no difference. While he did not ‘flee’ from California in the literal sense of the word, nevertheless, not having completed the sentence imposed by the state court of California, he, at the time of his release in this state by the federal authorities, was, as to the state of California, a fugitive from justice and therefore was subject to being returned to that state.” 192 Kan. at 628-9.
See also Longoria v. Sheriff of Leavenworth County, 225 Kan. 248, 589 P.2d 607 (1979).
It is clear, then, that this petitioner is a “fugitive” subject to extradition. Any claims he may have for credit on his Texas sentences for time spent in federal custody may be taken up in Texas; regardless of credit, they have obviously not expired. The same may be said of his complaints against the Texas prison system. See Killingsworth v. Hawes, 222 Kan. 209, 211, 563 P.2d 478 (1977).
Finally, we note the Kansas Governor’s warrant is sufficient on its face and we are not at liberty to go behind it. Stewart v. Sheriff of Leavenworth County, 5 Kan. App. 2d 593, Syl. ¶ 1, 620 P.2d 352 (1980), rev. denied 229 Kan. 671 (1981). The Texas requisition and supporting documents are not in the record, precluding our review of them. Gladney v. Sheriff of Leavenworth County, 3 Kan. App. 2d 568, 598 P.2d 559 (1979).
Affirmed. | [
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Miller, J.:
Both parties to this lawsuit have appealed from the rulings of the trial court in a zoning dispute.
In Count I of its second amended petition, plaintiff landowner, Colonial Investment Company, Inc., sought to estop the defendant City of Leawood from zoning the disputed tract as noncommercial; in Count II plaintiff prayed for a declaratory judgment declaring that the land was in fact zoned commercial; in Count III plaintiff asked the court to declare that Colonial had a vested right to use the land for commercial development; and in Count IV plaintiff asserted a cause of action for inverse condemnation.
The case came before the trial court on Colonial’s motion for summary judgment on Count II of its petition, and on the City’s motion to dismiss all four counts of plaintiff’s petition for failure to state sufficient facts upon which relief could be granted.
The trial court sustained Colonial’s motion for summary judgment on Count II of its action, and sustained the City’s motion to dismiss Counts I and III. It retained jurisdiction to hear Count IV of the action if necessary. It is from the rulings on the first three counts that the parties have appealed.
Based upon uncontroverted allegations of fact made by both parties, the trial court found that when the Leawood Drive-In was built on the disputed tract it was located in Oxford Township, and that the tract had been validly zoned for commercial use by action of the Township and the Board of County Commissioners. The tract was annexed to the City' of Leawood by ordinance adopted February 20, 1967.
The court further found that on December 1, 1969, the city council of the City of Leawood passed a resolution recommending that Land Use Plan A, prepared by Black & Veatch, as amended, be adopted by the Leawood Plan Commission. On December 22, 1969, based upon the recommendation of the city council, the Leawood Plan Commission approved and adopted a Future Land Use Plan. Both of these plans designated the Leawood Drive-In tract for commercial use.
On February 24,1975, the Leawood Plan Commission adopted a Comprehensive City Plan for the entire city which reaffirmed the tract’s commercial designation.
The trial court made specific findings of fact as follows:
“8. On April 25, 1977, Wilson M. Williams, plaintiffs president, appeared before a regularly scheduled meeting of the City Plan Commission of Leawood and stated that he was contemplating purchasing the Leawood Drive-In to develop it for commercial use, and that he wanted to ascertain the zoning status of the tract. The City Plan Commission stated that the tract had been zoned for commercial use by the Oxford Township; that the commercial zoning had been in part recognized by Leawood as evidenced by its master plan; and that the primary issue with respect to the use of the property would be the quality of the development. The City Plan Commission indicated that it would impose the highest standards with respect to the quality of any commercial development.
“9. In reliance upon the Leawood Land Use Plan, the Comprehensive City Plan, the representations of the City Plan Commission and other officials of the City, plaintiff agreed to purchase the tract from L & N Properties, a general partnership, at a substantially higher price than would have been paid had the use of the property been restricted to residential dwellings.
“10. After execution of the contract for sale on the tract, plaintiff was advised by the City that a question as to the legality of the zoning existed and that plaintiff would be required to apply for rezoning of the property. The City agreed that plaintiff’s application for rezoning would be without prejudice to its claim that the Leawood Drive-In was zoned for commercial use.
“11. Plaintiff then submitted a proposal and application for rezoning to the City Plan Commission for the development of the 37-acre site as a planned commercial and planned residential development. Finding that plaintiff’s proposed development met the spirit and intent of the Zoning Regulations and was consistent with all the City’s planning documents, the Plan Commission recommended approval of the zoning request by the City Council.
“12. Prior to the vote of the City Council on April 17, 1978, concerning this zoning, the City Attorney determined that a valid zoning protest had been filed and that a three-fourths vote of the Council was therefore required.
“13. On April 17, 1978, the City Council in reliance upon said ruling of the City Attorney and with seven members of the City Council present, rejected the plaintiff’s proposed development by a four to three vote and requested the City Plan Commission reconsider the application.
“14. After reconsidering said application, the Plan Commission sent back to the City Countil its earlier recommendation of approval.
“15. Thereafter, the City Attorney determined the zoning protest was not valid, and then informed the Council that they must reconsider the vote taken on April 17, 1978. With eight council members present, the motion for reconsideration was declared defeated when four voted in favor of reconsideration and four voted against.
“16. The City Council has failed to reconsider this matter and it is now apparent that it will not further consider said ordinances.”
The essence of Colonial’s claim as set forth in Count I is that it reasonably relied, to its detriment, upon the acts and representations of the City and its officers that the land was zoned commercial, and that the City should now be estopped from zoning the land as noncommercial.
The most recent summarization of the theory of equitable estopped and its application appears in Lines v. City of Topeka, 223 Kan. 772, 780, 577 P.2d 42 (1978). There the court stated:
“In United American State Bank & Trust Co. v. Wild West Chrysler Plymouth, Inc., 221 Kan. 523, 527, 561 P.2d 792 (1977), we stated:
“ . . Equitable estoppel is the effect of the voluntary conduct of a person whereby he is precluded, both at law and in equity, from asserting rights against another person relying on such conduct. A party asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when it had a duty to speak, induced it to believe certain facts existed. It must also show it rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts. (Wichita Federal Savings & Loan Ass’n v. Jones, 155 Kan. 821, 130 P.2d 556, 31 C.J.S., Estoppel, § 59, p. 367.)’
“On several occasions this court has applied the doctrine of equitable estoppel against cities where the facts of the case so required. (See, Skaggs v. City of Pratt, 183 Kan. 424, 327 P.2d 1083 [1958]; Derby Oil Co. v. City of Oxford, 134 Kan. 59, 4 P.2d 435 [1931]; State, ex rel., v. City of Hutchinson, 103 Kan. 370, 175 Pac. 147 [1918]; City of Belleville v. Hallowell, 41 Kan. 192, 21 Pac. 105 [1887]; City of Leavenworth v. Laing, 6 Kan. 274 [1870].)
“In Benson v. City of DeSoto, 212 Kan. 415, 422, 510 P.2d 1281 (1973), it was said:
“ . . It is generally recognized that with respect to matters within the scope of its power and authority to act, a municipal corporation is subject to the rules of estoppel in those cases wherein equity and justice require their application and where such application will not interfere with the proper exercise of governmental functions; but where there is an entire absence of such power on its part, there can be no estoppel as against the municipality or its inhabitants. (28 Am. Jur. 2d, Estoppel and Waiver, § 128.) . .
In pressing its argument on estoppel, Colonial relies upon two types of City action; (1) the official acts of the City in passing the 1969 Future Land Use Plan and the 1975 Comprehensive City Plan, and (2) the representations of various city officials about the zoning classification of the subject property prior to its purchase by Colonial.
The so-called master plans adopted by a city for future land use are generally recognized as general outlines of the long-term, projected development of an area. Such plans differ from a zoning ordinance which is but one of the tools for implementing such a plan. Haar, In Accordance with a Comprehensive Plan, 68 Harv. L. Rev. 1154, 1156 (1955). The adoption of such a plan raises no implication or representation that the plan may not be subsequently modified in the light of future developments.
Colonial argues, however, that the representations made by various city officials and the planning commission in conjunction with the comprehensive land use plans constitute sufficient assurances to serve as a basis for estoppel. In support of this contention, Colonial relies upon the Kansas cases cited above which hold that actions or statements by city officials may serve as a basis for estoppel.
An analysis of these cases, however, shows that in each case in which estoppel was invoked against the City, the actions or representations made by the City or its officials were undertaken or made with the specific intent and purpose of inducing the complaining party to act in reliance thereon.
Here, the record discloses that there was a conversation between several members of the city council of Leawood at a council meeting regarding the zoning classification of the Leawood Drive-In. Several councilmen and the city attorney apparently had personal knowledge of the tract’s commercial classification and expressed themselves accordingly. We do not believe that these matter-of-fact statements made by several members of the council in response to a request for information can reasonably be construed as a conscious intent on the part of the city council and its members to induce Colonial to buy the disputed tract for commercial development. Nor do we find anything in the record to support Colonial’s assertion that the City represented that it would continue the commercial zoning.
Likewise, the representations and statements made by the city planning commission are not the basis for estoppel of the city council, since the actions of a planning commission are advisory. City of DeSoto v. Centurion Homes, Inc., 1 Kan. App. 2d 634, 573 P.2d 1081, rev. denied 225 Kan. 843 (1977). In Houston v. Board of City Commissioners, 218 Kan. 323, Syl. ¶ 3, 543 P.2d 1010 (1975), the court said:
“The function of a planning commission is advisory only. The final authority in zoning matters rests with the governing body possessing legislative power.”
The trial court did not err in holding that under the circumstances here the City was not estopped.
As a further issue, the parties disagree as to the status of zoned property when annexed by a city. Neither of the parties question the power of a city to rezone property upon annexation. But Colonial contends that annexed property retains its zoning until rezoned by the city. The City’s position is that the property loses its zoning classification upon annexation, and comes into the city unzoned.
This is an issue of first impression in Kansas appellate courts. Other jurisdictions have taken several different approaches.
In some jurisdictions, annexed property retains its zoning classification until rezoned by the city. Maricopa County Bd. of Super. v. Bell 51st Investors, 108 Ariz. 261, 495 P.2d 1315 (1972); Highland Village Co. v. City of Jackson, 243 Miss. 34, 137 So. 2d 549 (1962); and Dahman v. City of Ballwin, 483 S.W.2d 605 (Mo. App. 1972).
Other jurisdictions have held that annexation strips the property of any zoning and that it comes into the city unzoned. Ben Lomond, Inc. v. City of Idaho Falls, 92 Idaho 595, 448 P.2d 209 (1968); Ellish v. Village of Suffern, 30 App. Div. 2d 554, 291 N.Y.S.2d 178 (1968).
Still other jurisdictions have statutes creating interim zoning, Taylor v. City of LR, 266 Ark. 384, 583 S.W.2d 72 (1979), and Allred v. Lakewood, 40 Colo. App. 238, 576 P.2d 186 (1977); or making zoning a part of the annexation ordinance, Beshore v. Town of Bel Air, 237 Md. 398, 206 A.2d 678 (1965). Some of these cases turn on particular statutes or ordinances.
The trial court adopted the position expressed in Dahman, that a change in the boundaries of sovereigns should have but a minimal effect on zoning ordinances which govern the conduct of landowners, and that the soundest way to protect property of zoning is to require that property retains its zoning classification upon annexation until rezoned.
Kansas statutes regarding zoning are found at K.S.A. 12-701, et seq., for cities and joint committees of city and county planning boards, and at K.S.A. 19-2901, et seq., for counties and townships. K.S.A. 19-2925a reads in pertinent part as follows:
“[A]ny zoning resolution adopted by any county under the provisions of the act of which this act is amendatory shall continue in force and effect the same as though adopted under the provisions of this act, until the same is modified or a new plan or part thereof . . . or zoning resolution is adopted as provided in this act.”
This section was passed into law in 1965. At the same time the legislature passed an identical section with respect to the duration of zoning adopted by cities, K.S.A. 12-715a. See also K.S.A. 12-705a, 12-706a.
Although these statutes do not deal directly with the issue of zoning, they do indicate the legislature’s underlying policy that stable land uses are beneficial to the public welfare and that such stability is enhanced by continuity of zoning.
In the final analysis, this result does not deprive the city of anything. It retains its sovereign right to rezone the property at any time after annexation, or to delineate the proposed use through affirmative zoning action at the time of annexation.
Finally, we are called upon to decide whether the trial court erred in holding that Colonial did not acquire a vested right to develop the land in accordance with its plans.
In most jurisdictions that have considered the problem, it is held, as a general rule, that a landowner has no vested right in the continuity of zoning in a particular area so as to preclude subsequent amendment, and that a zoning regulation may be retroactively applied to deny an application for a building permit, even though the permit could lawfully have been raised at the time of application. Annot., 50 A.L.R.3d 596, § 3. See also Annot., 49 A.L.R.3d 13.
An exception to the general rule has been recognized, however, in a number of jurisdictions where the landowner has incurred substantial liabilities or performed substantial work in reliance upon a valid zoning regulation, and the court has found that it would be inequitable and unjust to destroy the landowner’s right to proceed. In such cases it has been held that the landowner acquired a vested right to proceed with the intended development. 82 Am. Jur. 2d, Zoning and Planning § 22. Colonial contends that it falls within this exception.
Evaluation of this claim requires a determination of the point in the development process at which the landowner can be said to have acquired such a vested right.
The City, in relying upon Ware v. City of Wichita, 113 Kan. 153, 214 Pac. 99 (1923), argues that in determining the substantiality of change necessary to establish a vested right, the court may consider only those expenditures and work done after a building permit has issued and construction has begun, neither of which has taken place in this case.
Colonial contends that such a test for substantiality of change is outdated and is neither realistic nor fair as applied to a multiacre commercial development in the present environment of urban development, where in addition to purchasing the property, extensive liabilities for architectural, engineering and legal services are required in preparation for development before applying for a building permit. It argues that all of these expenses must be considered by the court. To support this contention, Colonial cites Hollywood Beach Hotel Co. v. City of Hollywood, 329 So. 2d 10 (Fla. 1976); DeKalb County v. Chapel Hill, 232 Ga. 238, 205 S.E.2d 864 (1974); American Nat. B. & T. Co. v. City of Chicago, 19 Ill. App. 3d 30, 311 N.E.2d 325 (1974); People ex rel. Shell Oil Co. v. Town of Cicero, 11 Ill. App. 3d 900, 298 N.E.2d 9 (1973). See also Life of the Land, Inc. v. Land Use Commission, 61 Hawaii 3, 592 P.2d 26 (1979).
Arguably, there is equity in Colonial’s claim that all of its expenses in purchasing the land and preparing the necessary plans for development should be considered in determining whether it has substantially changed its position in reliance on the existing zoning, at least insofar as such plans are within the perimeter of the proposed changes set forth in the master plans adopted by the City. Both parties conceded that in the two master plans, only a portion of the disputed tract is zoned commercial. Colonial should be charged with notice of these changes. Avco Community Developers, Inc. v. South Coastal Regional Com., 17 Cal. 3d 785, 132 Cal. Rptr. 386, 553 P.2d 546 (1976). And we cannot ignore the uncontroverted affidavit attached in support of Colonial’s motion for summary judgment that it paid a $417,105 premium for the subject property because of its commercial zoning.
Notwithstanding this, although there are factual differences, we are of the opinion that the standards promulgated in Ware v. City of Wichita, 113 Kan. 153, are controlling. In that case the court found that the adoption of a zoning regulation which prohibited the construction of a building for which a building permit had been issued did not constitutionally impinge upon any vested property rights, since actual construction had not begun.
More recently, in Houston v. Board of City Commissioners, 218 Kan. at 332-333, where the landowners contended that they had purchased the property for commercial development, the court cited the holding in Ware with approval, and went on to say:
“The court went on to hold that any diminution in the value of the property as a result of the ordinance was immaterial, for ‘[i]t often happens that a valid exercise of the police power has such effect.’ [113 Kan. at 157.] The same considerations apply here. Plaintiffs have taken no action to develop the property and have not changed their position in reliance on the previous zoning beyond the initial step of purchase. In this respect their situation is no different than that of an original owner (or that of Ware) who may find an inchoate scheme for development dashed on the rocks of zoning. Our statutory scheme, in K.S.A. 1974 Supp. 12-709, protects ‘existing uses’ from subsequent zoning but it does not protect either existing zoning or merely anticipated uses. Plaintiffs must be presumed to have been aware of that when they bought their property.
“Had plaintiffs developed their property for commercial uses or even taken any substantial steps toward such development we would have an entirely different lawsuit. It might then be akin to the second Kansas case we find persuasive, Spurgeon v. Board of Commissioners, 181 Kan. 1008, 317 P.2d 798. In that case this court upheld a Shawnee county zoning resolution which required the removal within two years of auto wrecking yards located in residential zones, even though they were lawful prior nonconforming uses. The two year period was held reasonable in view of the owner’s capital investments, and the resolution was held to be a valid exercise of the police power as against the landowners’ claim that they were being deprived of their property without due process of law. It appears to us that if a governing body can constitutionally zone an existing business out of existence, it can surely zone against a use which is merely contemplated at some indefinite time in the future.
“We conclude that plaintiffs had no constitutional right to the continuation of the zoning existing at the time they purchased their land.”
We conclude that the trial court did not err in ruling that under the circumstances in this case, Colonial did not acquire a vested right to develop the disputed tract in accordance with the zoning existing at the time it purchased the property.
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Miller, J.:
Defendant has appealed from a judgment finding him to be the father of Jarrod Tice, the plaintiff. At issue is the admissibility in evidence of the results of human leucocyte antigen tests (herein referred to as HLA tests) to prove paternity.
At the trial, Leslie Horner, the plaintiff’s mother, testified that Jarrod was born August 7, 1978, and that the date of conception was about the first of November, 1977. She was able to make this determination because of a missed menstrual period.
Leslie’s testimony was that she met defendant in September of 1977, when she was sixteen and he was twenty years of age, and that she dated him until December of 1977. She testified that during this period she had intercourse with defendant numerous times and with no one else, except for one time on New Year’s Eve, December 31, 1977, when she had intercourse with her present husband, Mike Horner.
Dr. Ronald Cross testified as an expert witness. He testified that he had taken blood samples from Jarrod Tice, Leslie Horner, Mike Horner, and defendant, David Richardson, and subjected the samples to HLA tests. On the basis of the test results, Dr. Cross was permitted to testify that the tests excluded Mike Horner as the father, but showed to a plausibility of 99.96% that defendant was the father of Jarrod. Dr. Cross stated that in his opinion, to a medical and scientific certainty, defendant was the father of plaintiff.
Defendant, in essence, contends that Dr. Cross should not have been permitted to testify as to the results of the HLA tests to prove paternity since the tests are relatively new, are not based on adequate data, and have not yet acquired unqualified acceptance in the scientific community. He further contends that the plausibility of parentage conclusion is based on statistical tables prepared by persons other than Dr. Cross who are not subject to cross-examination.
The HLA test for paternity is a relatively new test which compares genetic antigens identified in the child which could only have been received from the alleged father with the frequency with which these antigens appear in the random population at large.
The test for the admissibility of new scientific evidence was discussed in State v. Washington, 229 Kan. 47, 53, 622 P.2d 986 (1981), wherein the court stated:
“The general test for determining the admissibility of a new scientific technique was enunciated in Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923). Simply stated, Frye requires that, before a scientific opinion may be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field. Thus, according to the Frye standard, if a new scientific technique’s validity has not been generally accepted or is only regarded as an experimental technique, then expert testimony based upon its results should not be admitted into evidence. Reed v. State, 283 Md. 374, 391 A.2d 364 (1978).
“Frye v. United States, 54 App. D.C. 46, was cited with approval in State v. Lowry, 163 Kan. 622, 629, 185 P.2d 147 (1947). Frye and Lowry both involved the admissibility of the results of a lie detector examination. The Frye test has been accepted as the standard in practically all of the courts of this country which have considered the question of the admissibility of new scientific evidence.”
It is the general acceptance in the expert’s particular field of science which assures the validity of the scientific evidence, and in determining this factor the court may consider other evidence, such as the widespread and practical usages of the scientific principle involved and articles from reliable sources appearing in scientific journals and other publications. In Reed v. State, 283 Md. 374, 380, 391 A.2d 364 (1978), cited with approval in State v. Washington, 229 Kan. at 53, the court stated:
“On occasion, the validity and reliability of a scientific technique may be so broadly and generally accepted in the scientific community that a trial court may take judicial notice of its reliability. Such is commonly the case today with regard to ballistics tests, fingerprint identification, blood tests, and the like. See Shanks v. State, supra, 185 Md. [437] at 440 [45 A. 2d 85 (1945)]. Similarly, a trial court might take judicial notice of the invalidity or unreliability of procedures widely recognized in the scientific community as bogus or experimental. However, if the reliability of a particular technique cannot be judicially noticed, it is necessary that the reliability be demonstrated before testimony based on the technique can be introduced into evidence. Although this demonstration will normally include testimony by witnesses, a court can and should also take notice of law journal articles, articles from reliable sources that appear in scientific journals, and other publications which bear on the degree of acceptance by recognized experts that a particular process has achieved. People v. Law, 40 Cal. App. 3d 69, 75, 114 Cal. Rptr. 708, 711 (1974).”
The HLA test has been described as an improved and reliable test for determining paternity in articles appearing in a number of medical and legal periodicals. As early as 1976, the American Bar Association approved HLA tests as a means of excluding the defendant from being the father, although the endorsement was not intended to exclude other tests. Abbott, Joint AM A-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Family L.Q. 247, 256 (1976). The most recent commentary on this subject appears in Mendelson, From Here to Paternity, 9 Barrister 12 (1982).
Another author, discussing HLA testing and probability evidence with respect to the Frye standard on admissibility of scientific evidence, states:
“The current test for the admission of scientific evidence was established in 1923 in Frye v. United States. Frye requires that scientific evidence be ‘sufficiently established to have gained general acceptance in the particular field in which it belongs.’ California, has adopted this standard, noting that its major advantage lies in the articulation of a conservative approach. Extensive periods of time generally intervene between scientific discoveries and their acceptance as evidence in court proceedings.
“The argument that an acceptable inclusionary blood test for paternity must reach absolute certainty confuses the scientific with the legal definition of fact. Presently, paternity cannot be proven to a degree of absolute certainty, but the standard of proof required in a paternity action is preponderance of the evidence. The degree of certainty generated by the HL-A paternity test (eighty-seven percent of all inclusionary tests result in a percent probability of paternity of ninety percent or greater) strongly indicates that HL-A paternity testing provides relevant evidence to be weighed by the fact finder along with all other evidence in the case.” Sterlek & Jacobson, Paternity Testing with the Human Leukocyte Antigen System: A Medicolegal Breakthrough, 20 Santa Clara L. Rev. 511, 525-26 (1980).
In Seider, Who Is the Father? HLA Testing Provides a Sure Answer to This Question - If Courts Would Only Listen, 3 Family Advocate 13, 14 (Fall 1980), the author concludes:
“The divergence of opinion throughout the United States on the use of the H.L.A. test is manifest. However, one factor appears undisputed: the reliability of the test as an indication of parentage is high. Its effectiveness has been endorsed by the American Medical Association and the Section on Family Law of the American Bar Association.
“Although not perfect, findings of paternity based on objective, scientific data, such as that provided by the H.L.A. test, far outweigh those based on subjective, frequently incomplete and uncorroborated testimony.
“As has been well noted, ‘considering the interests at stake and the costs of an erroneous decision — to the parties, to society, to the integrity of the legal system — the question of paternity should be dealt with empirically, as a question of genetics.’ ”
Since HLA testing is a relatively new test insofar as its use in the courtroom is concerned, it has been dealt with by only a few appellate courts. Several courts have refused to admit the test to show probability of paternity. In so doing, however, these courts have in general acknowledged the test as reliable but nevertheless rejected the evidence under specific statutes which limit admissibility of blood tests results to those which exclude the alleged father. Winston v. Robinson & State, 270 Ark. 996, 606 S.W.2d 757 (1980); Cardenas v. Chavez, 103 Mich. App. 646, 303 N.W.2d 3 (1980); J.B. v. A.F., 92 Wis.2d 696, 285 N.W.2d 880 (1979). The statutes involved in these cases were enacted with reference to blood tests based on red blood cell groupings which, in accordance with the state of medical knowledge at the time, was the test commonly employed and which was accepted only as a reliable test to exclude paternity.
Where there has been no limiting statute, however, those courts which have dealt with the question have unanimously approved the HLA test as reliable and probative. Cramer v. Morrison, 88 Cal. App. 3d 873, 153 Cal. Rptr. 865 (1979); Carlyon v. Weeks, 387 So.2d 465 (Fla. Dist. Ct. App. 1980); Com. v. Blazo, 10 Mass. App. Ct. 324, 406 N.E.2d 1323 (1980); Malvasi v. Malvasi, 167 N.J. Super. 513, 401 A.2d 279 (1979); Phillips By & Through Utah, Etc. v. Jackson, 615 P.2d 1228 (Utah 1980).
K.S.A. 23-131, which provides for the use of blood tests in paternity cases, does not limit the use of such test results to those which exclude the alleged father.
In sum, our review of the reported cases and recent literature convinces us that HLA tests to determine paternity are generally accepted in the scientific community as reliable. We hold that the results of such tests are admissible in evidence in they otherwise meet relevant legal standards for the admissibility of such tests.
In determining whether the test results meet other relevant legal standards, the court must consider other factors, such as (1) the qualifications of the necessary witnesses, (2) the actual procedures employed in the test, (3) whether proper procedures and materials were used in the particular test, and (4) the effect of variables and other factors, if any, that might tend to affect the accuracy of the test.
In the present case, Dr. Cross’ credentials as an expert in histocompatibility testing were impressive. He is a professor at the University of Kansas School of Medicine, director of the Midwest Organ Bank, and has written approximately one hundred articles in medical journals. He testified about the HLA test used and its acceptance in the scientific community as a reliable test for paternity. He then explained how the tests were performed, including safeguards for errors, the comparison of antigens found in the blood cells, and how the comparisons were used to determine paternity. The end result was a paternity index and a plausibility of paternity. Dr. Cross used the formula from the American Association of Blood Banks for calculating the probability that defendant was the actual father as compared to a random man selected from the population as a whole. In this case, the tests showed a plausibility of paternity in defendant of 99.96%. Based on these results, he gave as his opinion that defendant was the father of the plaintiff.
Dr. Cross was subjected to vigorous cross-examination by defendant’s counsel, and our review of the record shows that the laboratory procedures and statistical analysis involved were carefully performed.
Defendant complains particularly about the random man sample used in the statistical calculation. Dr. Cross testified, however, that the sample values are published in many medical journals, are widely accepted in medicine, and that the use of the random man factor is inherent in the HLA paternity test.
In conclusion, we hold that the trial court did not err in admitting into evidence the testimony of Dr. Cross and his opinion, based upon HLA tests, that defendant was the father of the plaintiff.
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Spencer, J.:
In this action, plaintiff National Education Association-Topeka, as the exclusive bargaining representative of the teachers employed by defendant Unified School District No. 501, sought and was granted by means of summary judgment confirmation of an arbitration award pursuant to provisions of K.S.A. 5-401 et seq. Defendant has appealed.
As a result of negotiations conducted during the 1978-1979 school year, plaintiff and defendant entered into an agreement covering terms and conditions of teacher employment. The agreement was subsequently ratified to cover the period of June 1, 1979, through June 1, 1981. Article VI of that agreement provides in part:
“A grievance dispute which was not resolved at the level of Superintendent of Schools under the grievance procedure may be submitted to an arbitrator for decision if it involves the application or interpretation of this agreement.”
The article then provides for the selection of an arbitrator, the manner and time in which a decision is to be rendered, and:
“The decision of an arbitrator, if made in accordance with his jurisdiction and authority under this agreement, shall be accepted as final by the parties to the dispute and both will abide by it.”
This matter involves a grievance initiated by one of the teachers employed by defendant, the details of which are deemed unimportant at this stage. It will suffice to note plaintiff’s contentions that the grievance was processed through the various procedural steps and submitted for arbitration, all as provided by the agreement. On April 15, 1980, the arbitrator issued a decision sustaining the grievance. Defendant refused to accept the arbitrator’s award, asserting it was not in accordance with the jurisdiction and authority of the arbitrator. Some three and one-half months later, this action was commenced in which plaintiff sought confirmation of the arbitrator’s award under the Uniform Arbitration Act, K.S.A. 5-401 et seq., or in the alternative for specific performance of the contract between plaintiff and defendant.
The parties agree the contract involved was negotiated pursuant to the Professional Negotiations Act, K.S.A. 72-5413 et seq., and that the binding arbitration clause in that contract is authorized by 72-5424(a), which provides:
“A board of education and a professional employees’ organization who enter into an agreement covering terms and conditions of professional service may include in such agreement procedures for final and binding arbitration of such disputes as may arise involving the interpretation, application or violation of such agreement.”
Of first concern is defendant’s arguments that failure to abide by an arbitrator’s award is a prohibited practice under the provisions of K.S.A. 72-5430(h)(7), and the administrative appeal procedures of 72-5430a provide a mandatory administrative remedy, which was a jurisdictional prerequisite to judicial review. K.S.A. 72-5430(h)(7) states that it shall be a prohibited practice for a board of education willfully to “refuse to participate in good faith in the . . . arbitration pursuant to an agreement entered into pursuant to K.S.A. 72-5424 . . . .”
Although defendant’s position is that it did not commit a prohibited practice because the award of the arbitrator exceeded the arbitrator’s authority, it contends the language of 72-5430(h)(7), “refuse to participate in good faith,” should be interpreted to include both failure to participate in the arbitration process and failure to abide by the resulting award. Therefore, its failure to accept and abide by the decision is “arguably” a prohibited practice which mandates first consideration under K.S.A. 72-5430a. Plaintiff on the other hand argues the statute pertains only to failure to participate in arbitration and that failure to abide by the award is not a prohibited practice, and therefore K.S.A. 72-5430a and the exhaustion doctrine do not apply.
Words in common usage are to be given their natural and ordinary meaning in arriving at the proper construction of a statute. Stephens v. Van Arsdale, 227 Kan. 676, 684, 608 P.2d 972 (1980). When a statute is plain and unambiguous the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. Randall v. Seemann, 228 Kan. 395, Syl. ¶ 1, 613 P.2d 1376 (1980). The meaning of a statute is gleaned from the words of the statute itself and only if that language is ambiguous does the court look to extrinsic evidence for aid in construction. State v. Bagemehl, 213 Kan. 210, Syl. ¶ 6, 515 P.2d 1104 (1973).
The statute is plain and unambiguous. The phrase “refuse to participate” contains words of common usage and could hardly be more basic. If applied to this case, we would be required to say defendant had refused to take part in arbitration. This is not so. Defendant did take part in arbitration but has so far refused to abide by it for the stated reason that the decision of the arbitrator was not in accordance with his jurisdiction and authority. It is the refusal to take part in arbitration which would constitute a prohibited practice under the statute. There is no way that refusal to abide by the decision could be a prohibited practice if in fact the decision was not made in accordance with the jurisdiction and authority of the arbitrator. We find the district court did have subject matter jurisdiction.
The next issue presented is whether the Uniform Arbitration Act may be applied to an arbitration clause in an employment contract between a school district and a teachers’ bargaining unit pursuant to the Professional Negotiations Act.
K.S.A. 1981 Supp. 5-401 provides:
“A written agreement to submit any existing controversy to arbitration or a provision in a written contract, other than a contract of insurance or a contract between an employer and employees or between their respective representatives, to submit to arbitration any controversy, other than a claim in tort, thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Emphasis added.
Plaintiff argues the exclusion in this statute, “other than a contract . . . between an employer and employees or between their respective representatives,” should be interpreted as applying only to private sector employment contracts and not to public sector contracts such as that in issue here. In making this argument, plaintiff relies primarily on Wichita Public Schools Employees Union v. Smith, 194 Kan. 2, Syl. ¶ 3, 397 P.2d 357 (1964), wherein it was stated:
“The statutes pertaining to employer and employee relations must be construed to apply only to private industry until such time as the legislature shows a definite intent to include political subdivisions.”
Plaintiff suggests, and the trial court agreed, that, inasmuch'as there has since been no definite legislative intent expressed to include public with private employers and employees, to exclude public employees from the Uniform Arbitration Act would severely limit the operative effect of K.S.A. 72-5424(a) and 75-4330(h), which authorizes public employers and employees to include provisions for final and binding arbitration. There is no justification for such a strained interpretation of the statute. In applying the rules of statutory construction, we find the language of 5-401 to be plain and unambiguous and to exclude all contracts between an employer and employees, or between their respective representatives, whether in the public or private sector. Nor do we believe that such construction of 5-401 repeals by implication 72-5424 or 75-4330(b), which permit binding arbitration clauses in public employment contracts. Such provisions, though not enforceable under the Uniform Arbitration Act, are enforceable in their own right.
Inasmuch as we find the trial court did have subject matter jurisdiction, but erred in rendering summary judgment under the Uniform Arbitration Act, the question as to whether interest was properly allowable need not be considered.
The judgment is reversed and this cause is remanded to the district court with directions to proceed with plaintiff’s action for specific performance of contract. | [
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Abbott, J.:
This appeal involves the Kansas Acts Against Discrimination (K.S.A. 44-1001 et seq.) as they relate to one alleging discrimination on the basis of his physical handicap.
The facts complained of occurred in September of 1976. Although the statutes have been amended since then, and in one case renumbered, the pertinent portions of the statutes involved remain the same and we will therefore cite to the current statutes only. K.S.A. 44-1009(c)(3) makes it an unlawful practice to discriminate against anyone because of a physical handicap. The term “physical handicap” has been broadly defined by the legislature in K.S.A. 44-1002(j) to mean:
“[T]he physical condition of a person, whether congenital or acquired by accident, injury or disease which constitutes a substantial disability, but is unrelated to such person’s ability to engage in a particular job or occupation.” (Emphasis supplied.)
The legislature has not further defined what constitutes a physical handicap, and the Kansas Commission on Civil Rights (KCCR) has issued no regulations on this point.
The trial court found that Palmer was not a handicapped person within the meaning of 44-1009(c)(3) in that he had no substantial disability, and that in any event the school district did not “discriminate” against Palmer because it had a reasonable basis to believe if he had a physical handicap his condition was sufficiently job related to disqualify him for the particular job for which he applied.
The salient facts are that Palmer applied to the school district for a position as custodian and was hired subject to his successfully passing a physical examination, which examination was performed by a Dr. Low. The school district rotates such examinations based on a list furnished by the Sedgwick County Medical Society of physicians who are willing to perform the examinations. Dr. Low learned from Palmer that he had been treated by a Dr. Hugo Weber for hematuria (blood in the urine). Hematuria is a symptom, not a disease, and no disease has ever been diagnosed or a medical reason given for blood in the urine. Dr. Low contacted Dr. Weber by letter, requesting information concerning Palmer’s medical history and work restrictions. Based on the written report given by Dr. Weber (that Palmer should not engage in heavy lifting, stooping or straining), Dr. Low recommended that Palmer not be hired. Palmer, upon learning he had not been recommended for employment, contacted Dr. Weber (Palmer was aware he would not be hired because of the results of his physical examination). Dr. Weber wrote a letter to the school district stating he believed that Palmer was able to perform the physical tasks involved in the custodial position. Dr. Low did not change his position that Palmer should not be hired. Palmer then filed a complaint with the KCCR. It ruled that Palmer was a physically handicapped individual whose handicap was unrelated to the position sought and awarded damages. The school district appealed to the district court and prevailed. Palmer and the KCCR appeal, raising a number of issues.
MOTION TO DISMISS
Palmer’s and the KCCR’s motion to the district court to dismiss because the school district did not comply with statutory procedural requirements in appealing the KCCR decision is without merit. The notice of appeal was timely filed by the school district, and there is no contention by appellants that they were misled by the format of the appeal. The trial court properly refused to dismiss the appeal. Alliance Mutual Casualty Co. v. Boston Insurance Co., 196 Kan. 323, 326-27, 411 P.2d 616 (1966).
TESTIMONY OF DR. RHODES
Palmer and the KCCR contend that the trial court erred in admitting the deposition testimony of a Dr. Rhodes, whose testimony was not offered in the administrative hearing before the KCCR. K.S.A. 44-1011 states that “[t]he court may, in its discretion, permit any party or the commission to submit additional evidence on any issue.” In order for error to be found, the judge must abuse that discretion. An abuse of discretion exists when it appears no reasonable person would have taken the action taken by the court. McColm v. Stegman, 3 Kan. App. 2d 416, Syl. ¶ 2, 596 P.2d 167 (1979). It is our opinion, however, that the testimony was properly admitted. See Chandler v. Neosho Memorial Hospital, 223 Kan. 1, 5, 574 P.2d 136 (1977). Even if we were to find an abuse of discretion in the admission of the evidence, any error was harmless. State v. McCorgary, 224 Kan. 677, 686, 585 P.2d 1024 (1978). The appellants concede that Dr. Rhodes’ testimony is of more benefit to complainant than to respondent, and we agree.
DISCRIMINATION
Appellants contend Palmer was a physically handicapped person within the meaning of K.S.A. 44-1002(j), and that his handicap was not related to his ability to do the job. The school district takes the position that the legislature requires a party who is claiming discrimination due to a handicap to first prove the existence of a physical condition or disease that amounts to a substantial disability, and there is no evidence in the record from which a finding could be made that Palmer has a substantial disability. In this case, Palmer, Dr. Low and Dr. Weber all testified they did not consider Palmer to be physically handicapped.
We have examined the authorities cited by these litigants and find them to be divided on the question of physical handicap. Most of the cases cited to us have more precise statutory definitions or administrative regulations which were considered by the courts to guide them as to legislative intent. Even if we were to give the broad interpretation to substantial disability requested by Palmer and the KCCR, we are of the opinion they could not prevail, because the trial court found, and we agree with its finding, that the school district successfully met its burden of proving it had a legitimate, nondiscriminatory reason for not hiring Palmer. See Kimmel v. Crowley Maritime Corp., 23 Wash. App. 78, 596 P.2d 1069 (1979). The school district, in good faith, hired an independent contractor to determine Palmer’s physical fitness to do the job sought. Based on the medical information the school district had before it when it made its decision not to hire Palmer, it acted in accord with an opinion reasonably arrived at that Palmer’s physical condition was job related and precluded his performing the job duties. Thus, Palmer could not have a “physical handicap,” because that term by its statutory definition requires disability not related to work. No contention is made that the school district acted in bad faith. The school district refused to employ Palmer as the result of independent medical advice given to it that Palmer should not be hired because of an existing medical problem that was job related. We do not glean from the statutes in question that it was the intent of the legislature to give a cause of action to any person who is refused employment as the result of independent medical advice given to a prospective employer. Having so concluded, the remainder of the issues raised by the appellants are moot.
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Parks, J.:
This is a post-judgment proceeding in a divorce action. Plaintiff Frank Patrzykont filed a motion to terminate child support on November 14, 1980. His former spouse, defendant Juanita Patrzykont, responded with a motion to change custody of the minor children to plaintiff and to determine arrearages in child support. The trial court sustained the motions and found plaintiff in arrears for $400. Plaintiff filed a motion for rehearing and reconsideration in light of Brady v. Brady, 225 Kan. 485, 592 P.2d 865 (1979). The request for modification was denied and plaintiff appeals.
On December 22, 1977, plaintiff and defendant were divorced and the defendant was awarded custody of the three minor children (Kevin, James and Tina). The trial court ordered the plaintiff to pay the sum of $75 per week for the support of the three children and further granted defendant-wife a judgment of $1,650 for back child support owed pursuant to an ex parte temporary support order. On July 7,1978, the trial court modified the child support by ordering plaintiff to pay the sum of $200 per month — $100 on the 6th of each month and $100 on the 21st of each month. On July 28, 1980, Kevin attained legal majority. James discontinued residing with the defendant as of the first week of September 1980 and since that time has been supporting himself and living with his older brother. From mid-September 1980 until November 20, Tina resided at the Kaw View Detention Home in Kansas City, Kansas, and the Topeka State Hospital as a ward of the state. Since November 21, Tina has resided with her father.
Effective December 12, 1980, the trial court sustained defendant’s motion to change custody of the two minor children to the plaintiff and also sustained plaintiff’s motion to terminate all child support. Thereafter, the defendant was awarded a judgment against the plaintiff in the sum of $400 in back child support.
In Brady, 225 Kan. at 490-92, our Supreme Court held that accrued child support payments cannot be modified under K.S.A. 60-260(h)(6) and that prospective unpaid child support payments could only be modified by proper motion pursuant to K.S.A. 1978 Supp. 60-1610(a). However, the court went on to hold that under K.S.A. 1978 Supp. 60-1610(o) any order requiring either parent or both parents to pay for the support of any child until the age of majority shall terminate when the child attains the age of 18 years, unless by prior written agreement approved by the court such parent or parents specifically agreed to pay such support beyond the time the child attains the age of 18. Brady, 225 Kan. 485, Syl. ¶ 4. Moreover, the court validated the automatic reduction in support made by the father when one of the children came to live with him with the consent of the mother. Brady, 225 Kan. at 491-92. Then, to facilitate these automatic changes in the support obligation, the court held that when a fixed sum payable periodically is awarded as support for more than one child and when the trial court does not specify the amount per child, justice is better served by dividing the sum proportionately. Brady, 225 Kan. at 491. The court summarized its conclusion stating as follows:
“When a child attains the age of majority, or when a child goes to live with the other parent, or when a child dies, the obligation to pay support for that child should automatically cease and terminate unless the agreement provides otherwise.” Brady, 225 Kan. at 491.
Thus, under Brady the overall child support obligation may be proportionately reduced by the parties without the order of the court, upon the occurrence of certain events such as death or majority of one of the children, or the change of actual custody to the other parent.
Here, the trial court calculated the arrearage based on the sum previously ordered for the support of all three children and refused to consider the date of Kevin’s eighteenth birthday or the date on which Tina began living with plaintiff as an automatic termination of any portion of that obligation. This was error. However, plaintiff also argues that under the rationale of Brady, emancipation of a child or commitment of a child to the custody of the state should operate as automatic termination events for the child support obligation.
Evidence was produced to show that during the first week of September 1980 the middle child, James, moved out of his mother’s house and became self-supporting. Plaintiff seeks to rely on the date of this apparent emancipation as the point at which his support obligation for James automatically terminated. In support of this argument plaintiff cites Ditmar v. Ditmar, 48 Wash. 2d 373, 293 P.2d 759 (1956), the case relied on by Brady in adopting the automatic reduction rule. However, there is a fundamental difference between Kansas law and Washington law which must bear on any further attempt to rely on Ditmar. In Washington it has been held that the obligation of support turns on dependency not majority. Childers v. Childers, 89 Wash. 2d 592, 597, 575 P.2d 201 (1978). By contrast, in Kansas a divorce court has no power to extend an order for support of a child beyond the majority of the child regardless of the continuation of actual dependency. Brady, 225 Kan. at 492.
Moreover, our court has held in the past that the receipt of support from the mother or others does not diminish or suspend the obligation of the father to support his children. Thompson v. Thompson, 205 Kan. 630, 633, 470 P.2d 787 (1970). Additionally, in the absence of wording in the decree to the contrary, the obligation of support is not terminated by the marriage and motherhood of the minor child. Ortiz v. Ortiz, 180 Kan. 334, 339, 304 P.2d 490 (1956). Thus, emancipation does not necessarily terminate the obligation of support and would be an inappropriate event for justifying automatic termination by the parents without sanction of the court.
Plaintiff also argues that Brady should be interpreted to automatically terminate his obligation to support the youngest child, Tina, when she became a ward of the state and no longer received support from her mother.
In Troughton v. Troughton, 3 Kan. App. 2d 395, 595 P.2d 1141 (1979), this court in dicta expressed the view that support would be automatically terminated for a child institutionalized for delinquency. Troughton, 3 Kan. App. 2d at 395-96. The only issue in that case was the effect of Brady on events occurring before that decision was filed. The court held that Brady did not apply to Troughton but mentioned that had it applied, the defendant would have been correct in proportionately reducing his child support obligation when one child was institutionalized for delinquency.
While a child committed to the care and custody of the state may no longer in fact depend on parental support, dependency has never been the measure of parental obligation in this state. In addition, K.S.A. 38-838 states as follows:
“38-838. Statutes for support of children not repealed. Nothing in this act shall be construed to repeal any act providing for the support by parents of their minor children; nor shall anything in this act be construed to relieve any person of his legal responsibility to support a child; and nothing in said acts shall prevent proceedings under this act in any proper case.”
The particulars of Tina’s commitment are not spelled out by the parties; however, as used in the juvenile code, the term “ward” means any child committed to or in the custody of the department of social and rehabilitation services. K.S.A. 38-828a. Assuming that Tina was temporarily placed in the custody of SRS, K.S.A. 38-828 in conjunction with K.S.A. 38-827 provides that when expenses for the care and custody of a child are paid out of various county or state funds because the child has been placed in the custody of the state under the authority of certain provisions of the juvenile code, the parents of the child may be required to reimburse the agency supporting the child.
Bearing in mind the right of the county or state to seek reimbursement for any support it provides and the language of K.S.A. 38-838 in preserving the obligation of support, we hold that classification of a minor as a ward of the state is not a sufficient basis for automatically reducing child support. If termination is appropriate, the party obligated to pay support must seek prospective termination by filing a K.S.A. 1981 Supp. 60-1610(a) motion.
Therefore, we conclude that neither emancipation of a minor nor commitment of a child to the custody of juvenile authorities as a ward of the state is an event which may validate an automatic reduction of the parental obligation of support without further court proceedings. However, when as here, the trial court did not consider in its calculation of child support arrearages the fact that a child attains the age of majority or goes to live with the other parent, the support order is contrary to Brady, 225 Kan. at 491, and is in error.
The judgment is reversed and the case is remanded to the district court with directions to calculate the arrearages, if any, in accordance with the views expressed herein. | [
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Miller, J.:
Defendant Alvin Gowler has appealed from his conviction and sentence for conspiracy to commit murder in violation of K.S.A. 21-3401 and 21-3302.
Gowler was charged separately, along with Judy P. Bishop, with conspiring together and with Kenneth Ogle to procure the death of Richard Jones, Bishop’s former husband. Over the objections of both Gowler and Bishop, the two cases were consolidated for trial, and the jury found both defendants guilty.
The evidence presented at trial resulted in differing versions of what had transpired. Richard Jones, the intended victim, testified that he and Judy Bishop were divorced in March of 1979 after a somewhat turbulent marriage of four years, and that during that time she had twice attempted to kill him, once by trying to run him down with her car and another time by firing at him with a loaded gun. Although the divorce was granted in March of 1979, a property settlement between the parties remained unresolved through January of 1980.
The State’s principal witness was Kenneth Ogle, the alleged coconspirator, who was granted immunity from prosecution. His testimony was that he lived with Judy Bishop from May of 1979 to January of 1980, and that she had repeatedly indicated to him that she would like to “do away with” Jones or “get rid of him.” Ogle finally agreed to see if he could find someone to help her.
In October or November of 1979, Ogle asked defendant Gowler, with whom he worked, if he knew of someone who could “do away with somebody permanently,” and Gowler advised that he knew some people who could do it. Subsequently, on December 1, 1979, Gowler called Ogle at Bishop’s home and advised that he had made contact with the boys who would do the killing, and that it would cost $500 front money and $5,000 for the actual killing. Bishop, upon being advised, agreed to the terms and gave Ogle $500 which was delivered to Gowler.
Ogle further testified that sometime in mid-December Bishop gave him $5,000 to be forwarded to Gowler upon request. Although Gowler was aware of its availability, he never made demand for the payment of the $5,000.
According to Ogle, the killing was to occur sometime in mid-January, 1980. At Bishop’s request and because of her concern about an approaching court date involving a property settlement, the date was advanced to the weekend of January 4-5, 1980. The killing did not occur, however, and in response to inquiries from Ogle, Gowler gave an excuse and suggested the possibility of another date.
On January 23, 1980, Ogle moved out of Bishop’s house, returned the $5,000, and told Bishop he wanted nothing more to do with the killing of Jones. After withdrawing from the conspiracy, Ogle was informed by Gowler that Bishop had contacted him about continuing the effort to have Jones killed. Gowler and Bishop met in a motel parking lot on January 25, 1980. This meeting was recorded on video tape by officers of the Shawnee Police Department. Bishop later told Ogle she had given Gowler another $500.
On February 4, 1980, Gowler was questioned by Johnson County Sheriffs officers. He immediately informed Ogle about the investigation and told Ogle to tell the detectives that they were just “ripping her off for money.” Ogle testified that this was the first time Gowler had indicated that the murder plot was only an effort to steal money from Bishop.
Judy Bishop testified and categorically denied all charges. According to her, she gave the $5,000 to Ogle so that he could start in the used-car business, and the $500 given to Ogle was given to him for Christmas shopping and to pay for procuring information which she needed in a pending child custody battle with another former husband. She admitted meeting Gowler on January 25, 1980, and admitted paying him $500 at that time, but stated that it was for information which she needed in the custody proceedings. She denied paying money to anyone for the purpose of having Richard Jones killed.
A detective with the Johnson County Sheriff’s Office identified a video tape which was made in a motel parking lot on January 25,1980. It showed a meeting between Bishop and Gowler which lasted about thirty minutes. Shown on the tape was an envelope being placed on the dash of the Gowler car and being left there.
The killing was never attempted and no credible reasons were ever given by Gowler for the plan’s failure. Gowler did not testify in his own behalf, relying instead on the insufficiency of the State’s evidence. Motions for judgment of acquittal were timely interposed on that basis and were overruled.
One of the grounds of error asserted by Gowler on appeal is that the trial court erred in overruling his motions for judgment of acquittal. He earnestly contends that there is no evidence in the record to show that he ever intended to kill anyone. To the contrary, he asserts, the most that the evidence indicates is that he was trying to steal money from Bishop. He notes that there was testimony confirming that even Bishop and Ogle began to suspect that defendant was trying to steal money from Bishop.
The standard for review of the sufficiency of evidence on appeal in a criminal case is stated in State v. Voiles, 226 Kan. 469, Syl. ¶ 6, 601 P.2d 1121 (1979), as follows:
“In a criminal action where the defendant contends the evidence at trial was insufficient to sustain a conviction, the standard of review on appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt? Following Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560, 99 S.Ct. 2781 (1979).”
Here, Ogle testified that he asked Gowler to find someone to kill Jones and that Gowler agreed to do so and accepted money given for that purpose. The jury chose to believe Ogle. When his testimony is considered with all the other evidence in the case, we find that there was sufficient evidence to support the jury’s verdict.
Gowler further assigns as error that the trial court erred in joining the two cases for trial. His contention is that as a result he was unduly prejudiced (a) by the introduction in evidence of prior criminal acts of codefendant Bishop, and (b) by repeated comments on his failure to testify by Bishop’s counsel.
The testimony of Jones, the intended victim, that Bishop had tried to kill him on two prior occasions was offered pursuant to K.S.A. 60-455. The rules for receiving such testimony in evidence are stated in State v. Myrick & Nelms, 228 Kan. 406, 420, 616 P.2d 1066 (1980), as follows:
“The rules regarding the admission of evidence of prior crimes or civil wrongs were stated in State v. Johnson, 222 Kan. 465, Syl. ¶ 2, 565 P.2d 993 (1977):
“ ‘In ruling on the admissibility of evidence of a prior conviction under 60-455, a district court must (1) determine it is relevant to prove one of the facts specified in the statute, (2) determine that fact is a disputed material fact - i.e., that it is substantially in issue, and (3) balance the probative value of the prior conviction evidence against its tendency to prejudice the jury.’ See State v. Treadwell, 223 Kan. 577, 581, 575 P.2d 550 (1978); State v. Faulkner, 220 Kan. 153, Syl. ¶ 1, 551 P.2d 1247 (1976).
“Conviction is not a prerequisite to introduction of a prior offense under K.S.A. 60-455. State v. Henson, 221 Kan. 635, 644, 562 P.2d 51 (1977); State v. Powell, 220 Kan. 168, Syl. ¶ 1, 551 P.2d 902 (1976).”
As a preliminary to receiving such evidence, the trial court held a hearing outside the presence of the jury and ruled that it was admissible as relevant to proving motive and intent. It was submitted to the jury with proper limiting instructions and we find no error.
A more difficult question is that presented by the contention of the defendant that he was prejudiced by the repeated comments on his failure to testify by Bishop’s counsel in final arguments to the jury. Timely objection to these comments were made by Gowler’s counsel and a mistrial requested, both of which were overruled. No admonition was given to the jury.
In Griffin v. California, 380 U.S. 609, 14 L.Ed.2d 106, 85 S.Ct. 1229 (1965), the Court held that comments by a judge or prosecutor on the defendant’s failure to testify in his own defense could cause the jury to infer guilt from such silence and therefore violate his Fifth Amendment right not to be compelled to be a witness against himself. The Kansas Supreme Court followed the Griffin rule in State v. Reeves, 224 Kan. 90, 577 P.2d 1175 (1978), and the legislature has codified the rule in K.S.A. 60-439, which provides:
“If a privilege is exercised not to testify or to prevent another from testifying either in the action or with respect to particular matters, or to refuse to disclose or to prevent another from disclosing any matter, the judge and counsel may not comment thereon, no presumption shall arise with respect to the exercise of the privilege, and the trier of fact may not draw any adverse inference therefrom. In those jury cases wherein the right to exercise a privilege, as herein provided, may be misunderstood and unfavorable inferences drawn by the trier of the fact, or may be impaired in the particular case, the court, at the request of the party exercising the privilege, may instruct the jury in support of such privilege.”
The principles precluding comment by a judge or prosecutor on the accused’s failure to testify has been extended to prohibit such comments by counsel for a codefendant. DeLuna v. United States, 308 F.2d 140 (5th Cir. 1962). See generally, Annot., Comment on Accused’s Failure to Testify, by Counsel for Codefendant, 1 A.L.R.3d 989.
Such comments by a prosecutor, while error, do not necessarily require reversal. In State v. Hamilton, 222 Kan. 341, 345, 564 P.2d 536 (1977), the court stated:
“Misconduct of counsel does not necessarily require a new trial unless it appears to have been so prejudicial as to deprive defendant of a fair trial. [Citations omitted.] .... In applying the Kansas harmless error rule (K.S.A. 60-2105) to a federal constitutional error the court must be able to declare the error had little, if any, likelihood of having changed the result of the trial and the court must be able to declare such a belief beyond a reasonable doubt. [Citations omitted.] Where the evidence of guilt is of such direct and overwhelming nature that it can be said the misconduct of counsel could not have affected the result of the trial, such misconduct is harmless error.”
Again, in State v. Dill, 3 Kan. App. 2d 67, 589 P.2d 634 (1979), this court held that such a comment by a prosecutor is not prejudicial per se, but the reviewing court must be able to declare a belief that it was harmless error beyond a reasonable doubt. We now hold that the same standard of review is applicable when the comment is made by codefendant’s counsel.
The State contends that the rationale of DeLuna is not appli cable in the present case because the defenses of Gowler and Bishop were not mutually antagonistic, and that the nature of the comments involved did not necessarily infer guilt from Gowler’s silence.
A review of the evidence reveals that while the defenses of the two codefendants were not actually antagonistic, they were inconsistent with each other. Bishop contended that she gave $5,000 to Ogle to start a business and that she gave $500 to Ogle and to Gowler to procure evidence she needed in court. Gowler contended that no matter what Bishop intended, he had no intention of killing anyone.
It is defendant’s contention that the jury could not believe him and also believe Bishop’s testimony, and that the comments by Bishop’s counsel on his failure to testify were such as to cast doubt on his defense.
We have reviewed the record, and given the evidence in this case we cannot say beyond a reasonable doubt that the comments made by Bishop’s counsel could not have affected the result of Gowler’s trial. We therefore find the error to be reversible error.
Reversed and remanded. | [
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Meyer, J.:
This appeal was taken by plaintiffs Robert Baker and Roger DeHart (appellants) from an involuntary dismissal of their action filed pursuant to K.S.A. 44-201 et seq.
By agreement dated May 2, 1978, between the appellee, R. D. Andersen Construction Co., Inc., and the State of Kansas, Kansas Neurological Institute, the appellee was to complete general construction of the Honey Bee Lodge and Hospital Care Facility for a total contract price of $1,553,560.00. The contract, at paragraph 9, states as follows:
“And it is expressly understood by each party to this contract, that the same shall be performed according to the provisions of K.S.A. 44-201, which is generally known as the ‘eight-hour law.’ ”
Appellant Baker was employed by the appellee on the subject project beginning on July 29, 1978, and ending on November 4, 1978. During the time of his employment, appellant Baker performed work for the appellee and was compensated at the rate of $4.25 per hour.
Appellant DeHart began work for the appellee on the subject project on October 17, 1978, and his employment terminated on November 3, 1978. During that time he performed work for the appellee and was paid at the rate of $3.50 per hour.
After learning of the provisions of K.S.A. 44-201, which requires that the current rate of per diem wages be paid by contractors performing work for the State of Kansas, appellants initiated this action to recover the difference between the current rate of per diem wages as established under the statute and the rate of wages they were actually paid by the appellee.
When the case came on for trial, appellants presented their evidence relating to the work which they actually performed and the rate of pay which they received for that work. As an aid in testifying, appellants prepared a “Summary of Work Done by Baker and DeHart,” which was admitted by stipulation of the parties. After this evidence of the type of work actually performed, appellants offered the testimony of several expert witnesses. These witnesses expressed their opinions relating to “work of a similar nature,” “greater number of workmen,” and “current rate of per diem wages.”
At the close of appellants’ evidence, appellee moved for a directed verdict; the court, sitting without a jury, treated this as a motion for involuntary dismissal. The court upheld the motion and appellants’ action was dismissed.
The court construed the statute in question as requiring a “task-by-task” analysis of the work done by appellants, followed by a computation of the per diem wage paid to the greater number of all workers in the locality who perform the same or similar tasks, regardless of the type of construction project where such tasks are performed. Appellants sought to prove that the prevailing wage for admittedly similar tasks varied according to the type of project setting (i.eresidential, commercial or heavy construction), in which these tasks were performed. Their evidence was confined to the wages paid to workers performing similar tasks in similar project settings, that being heavy construction in this case. The court considered this inadequate proof, as evidence of wages paid to workers performing similar tasks in different project settings was not presented. Because the court believed that the statute required consideration of all workers performing similar tasks, it ruled that appellants’ evidence failed to present a prima facie case, for they had excluded from their wage computations workers laboring in project settings different than their own. For this reason, the court sustained appellee’s motion for involuntary dismissal.
Appellants filed the instant appeal, contending that the construction of K.S.A. 44-201 applied by the trial court was incorrect, and that under the correct construction of that statute appellants had indeed presented a prima facie case, and that therefore the dismissal of their petition was error.
The major issue in this case turns on whether the trial court’s construction of 44-201 was correct. In ruling on the meaning and requirements of that statute, the lower court was stating a conclusion of law; appellate review of conclusions of law is unlimited. State, ex. rel., v. Doolin & Shaw, 209 Kan. 244, 261, 497 P.2d 138 (1972).
The general rules governing statutory construction are well established. The opinion of the court in Coe v. Security National Ins. Co., 5 Kan. App. 2d 176, 180, 614 P.2d 455 (1980), contains an excellent review of several basic tenets, extracted from prior cases. To summarize the court’s statements there, it has been held that the fundamental rule of statutory construction is that the intent of the legislature must control; all other rules of construction are subordinate. The legislative intent should govern even though it does not follow the literal words of the statute; words, phrases or clauses may be omitted or inserted in appropriate places to achieve this result. When a statute is susceptible to more than one construction, it should be considered in its entirety and in light of the legislative intent; a statute should never be construed so as to produce uncertainty, injustice or confusion if it is possible to construe it otherwise.
It is also clear that, in determining legislative intent, the courts should look to the purpose, necessity and effect of the statute. State ex rel. Stephan v. Lane, 228 Kan. 379, 390, 614 P.2d 987 (1980). Consideration should be given to the causes of a statute’s adoption, the historical background and the effect the statute may have under the various constructions suggested. State, ex. rel., v. City of Overland Park, 215 Kan. 700, 713, 527 P.2d 1340 (1974).
The basic idea underlying all these rules is not a new one:
“ ‘It is not the words of the law but the internal sense of it that makes the law; the letter of the law is the body; the sense and reason of the law is the soul.’ (Quoted from the dissent of Mr. Justice Harlan in the Civil Rights Cases, 109 U.S. 3 [1883], 27 L.Ed. 835, 3 S.Ct. 18.)” Mahone v. Mahone, 213 Kan. 346, 350, 517 P.2d 131 (1973).
These general precepts are the ones which we shall apply in determining the proper construction to be given 44-201, an undertaking necessarily antecedent to determining if the trial court’s construction was correct.
K.S.A. 44-201, popularly referred to as the “eight-hour law,” was first enacted, in a form not unlike today’s statute, in 1891. Generally, it provides that on government-funded construction projects, all workers shall receive the minimum wage prevailing in their locality for such construction work and that eight hours of work shall constitute a day. An examination of some pertinent passages from the statute follows.
“ ‘The current rate of per diem wages’ for the intents and purposes of this act shall.be the rate of wage paid in the locality as hereinafter refined to the greater number of workmen, laborers or mechanics in the same trade, occupation or work of a similar nature. In the event that it be determined that there is not a greater number in the same trade, occupation or on similar work paid at the same rate, then the average rate paid to such laborers, workmen or mechanics in the same trade, occupation, or work shall be the current rate. The ‘locality’ for the purpose of this act shall be the county wherein the physical work is being performed: Provided, That where cities of the first or second class are located in said counties, each such city shall be considered a locality.
“Eight hours shall constitute a day’s work for all laborers or other persons employed by or on behalf of the state of Kansas or any municipality of said state .... Laborers or other persons so employed, working to exceed eight hours per calendar day, shall be paid on the basis of eight hours constituting a day’s work. Not less than the current rate of per diem wages in the locality where the work is performed shall be paid to laborers or other persons so employed.
“And laborers and other persons employed by contractors or subcontractors in the execution of any contract or contracts with the state of Kansas or any municipality thereof shall be deemed to be employed by or on behalf of the state or such municipality so far as the hours of work and compensation herein provided are concerned.
“That the contracts hereafter made by or on behalf of the state of Kansas or by or on behalf of any county, city, township or other municipality of said state with any corporation, person or persons which may involve the employment of laborers, workmen or mechanics, shall contain a stipulation that no laborer, workman or mechanic in the employ of the contractor, subcontractor or other person doing or contracting to do the whole or a part of the work contemplated by the contract shall be permitted or required to work more than eight (8) hours in any one calendar day except in cases of extraordinary emergency (as defined in this act); such contract shall contain a provision that each laborer, workman or mechanic employed by such contractor, subcontractor or other person about or upon such public work shall be paid the wages herein provided . . . .”
Even though this law has been on the books for 90 years, the number of published cases involving a construction of the act are very few, and most of these are not helpful to this case because they deal with the “eight-hour,” not the “current rate of per diem wages” provision; for this reason, there can be honest dispute as to what is the true and correct construction of the statute.
The earliest reported cases involved claims by plaintiffs that they had been forced to work periods in excess of eight hours per day. In these cases, the courts naturally tended toward stressing that arm of the statute when speaking to the purpose of the law.
“When the eight-hour law was passed .... [t]he leading idea clearly was to limit the hours of toil of laborers, workmen, mechanics, and other persons in like employments, to eight hours, without reduction of compensation for the day’s services.” In re Ashby, 60 Kan. 101, 106, 55 Pac. 336 (1898).
Even in the early cases, involving only claims of excess time being extracted from workers, statements were made by the courts which reflect a recognition that the statute had a broad scope and purpose, that being to protect the public good.
“The purpose [of the statute] .... is to relieve laborers, workmen, mechanics and similar employees from the pressure of economic conditions which compel them to work beyond just limits of time and endurance. It is a human life, health and welfare statute, to be given a beneficial interpretation for the public good.” State v. Ottawa, 84 Kan. 100, 105, 113 Pac. 391 (1911).
The more recent expressions of opinions regarding the purpose and requirements of the statute indicate an increasing awareness that its “current rate of per diem wages” provisions should be given equal status with the “eight-hour” mandates. The statute has been likened to the"Davis-Bacon Act, 40 U.S.C. § 276a. This federal law, and the regulations adopted in conjunction with it, require a wage delineation between similar classes of labor when performed in different project settings. The similarity of purposes of these two acts was pointed out in Att’y Gen. Op. No. 77-298, at page four:
“[T]he ‘current rate of per diem wages,’ as defined by K.S.A. 44-201 .... appears to be substantially identical to the prevailing wage which is determined by the United States Secretary of Labor in the administration of the Davis-Bacon Act, 40 U.S.C. § 276a. That section requires that specified federal public works contracts include a stipulation requiring that
‘the minimum wages to be paid various classes of laborers and mechanics . . . shall be based upon the wages that will be determined by the Secretary of Labor to be prevailing for the corresponding classes of laborers and mechanics employed on projects of a character similar to the contract work in the city, town, village, or other civil subdivision of the State, in which the work is to be performed . . . .’ ” (Emphasis added.)
In this opinion, the attorney general went on to state that, while not mandatory, it would be preferable if advertised specifications for public projects in Kansas specified the prevailing minimum wage rates for the various classes of labor necessary under the contract. To our knowledge, this suggestion has never been attacked; in fact, a contract which did specify the wage rates to be paid (using the Davis-Bacon figures of the Department of Labor) was upheld; such figures may be used in the plans and specifications on which competitive bidding will be based, as long as the figures used meet or exceed the “current rate of per diem wages” as defined in 44-201. Andersen Construction Co. v. City of Topeka, 228 Kan. 73, Syl. ¶ 6, 612 P.2d 595 (1980).
Admittedly, these two acts (K.S.A. 44-201 and Davis-Bacon) are not identical. When the attorney general, in opinion 78-42, declared that K.S.A. 44-201 required that all plans for publicly-funded projects contain wage specifications from Davis-Bacon, this ruling was challenged in the courts. The Kansas Supreme Court “reversed” the attorney general, stating that 44-201 would allow Davis-Bacon wage specifications, but did not require them. See Andersen Constr. Co. v. Weltmer, 224 Kan. 191, 577 P.2d 1197 (1978).
We note, however, that in neither of the two cases immediately aforementioned did the high court address the issue of statutory construction now before this court. Thus, in Andersen Construction Co. v. City of Topeka, 228 Kan. 73, Syl. ¶ 4, it was stated:
“K.S.A. 44-201 was enacted not for the benefit of contractors but to protect employees by fixing a floor under wages on public projects. It is an expression of public policy that payment of low wages shall not give a contractor an advantage in bidding or securing a public contract.”
Having examined the relevant case law surrounding 44-201, the nut of the instant case is this: the issue here involves a question of public policy; that is, does 44-201 implicitly require that account should be taken of the fact that workers performing similar tasks often receive different wages depending on the type of construction project involved, and therefore only those workers performing similar tasks in similar project settings should be considered when computing the “current rate of per diem wages” for a particular public project; or, should we reject this implication, and hold (as did the trial court) that in making such wage computations, all workers performing similar tasks must be considered, regardless of the type of construction project they are engaged on?
Appellants urge the first construction. They point out Davis-Bacon and the acts of numerous states, all of which require a “project-based” analysis in wage-rate computations. They argue that a refusal to adopt such a requirement will allow contractors to pay their workers less on a public contract than they would on a private project of the same character; this, they contend, would eviscerate 44-201.
Appellee argues that the trial court’s construction of 44-201 was correct. It points out that the statute contains no mention of projects; also, that no court opinion has ever explicitly stated that the statute should require a project-based analysis. It accepts that Davis-Bacon and the laws of many other states require delineation of projects in wage-rate computations, but insist that these laws are distinguishable from 44-201.
This court feels that the construction of 44-201 advanced by appellants is the better of the two, and we adopt it as the law in Kansas.
A major policy underlying 44-201 is that workers employed on public works projects should receive the same wages as workers doing the same tasks on a substantially similar private project. Thus, one purpose of the law is to insure that workers engaged in public projects are not penalized by receiving a lower wage than workers in the private sector.
Workers, although in the same generic class of employment, are not necessarily always in the “same trade, occupation or work of a similar nature,” to use the statutory language. Persons employed to do similar tasks may nevertheless not be in the “same trade, occupation or work of a similar nature,” owing to the fact that such workers perform these similar tasks in substantially different work environments. The “eight-hour law” should be construed in light of these statements.
We hold that in computing the “current rate of per diem wages” for the purposes of 44-201, only those workers employed to do similar tasks on similar classifications of projects should be taken into account. Only if no classification of projects, and therefore no differential wage rates exist, should consideration be given to all the workers in the locality doing similar tasks, regardless of the project setting they work in.
Because the wage rates paid to workmen do vary in many localities, according to the type of construction project involved, it is only being realistic to require the “current rate of per diem wages” under 44-201 to be computed according to the rate of wages prevailing in the locality on projects of a nature similar to the one under consideration. A major purpose of 44-201 — to prevent contractors from paying lower wages on public contracts than they would pay on an identical private project — would tend to be thwarted under the trial court’s construction of that statute. A project-based analysis would also lessen the burden on a plaintiff who sues a contractor under 44-201, for his proof could be limited to similar projects, and would not have to involve all workers doing similar tasks in any setting. Further, a project-based construction would indirectly serve the “eight-hour” mandate of 44-201 in addition to directly affecting the “minimum wage” provisions. These two arms of the statute are like two sides of the same coin; if a worker is not paid an adequate wage for his eight-hour day of work on a public construction project, it is highly likely that economic pressures may force him to work at some other employment in addition thereto, thus obviating one purpose of 44-201, that being to prevent overworking of public employees.
The construction urged by appellants is not entirely without support in Kansas case law. In the case of State, ex rel., v. Construction Co., 99 Kan. 838, 162 Pac. 1175 (1917), the court had before it a suit brought under a predecessor of 44-201. The issue was the rate of wages to be paid to concrete form builders on a bridge construction project. The plaintiffs there brought in evidence that while they had been paid only 40 cents per hour, workers building concrete forms on building projects received 65 cents per hour. The plaintiffs’ evidence showed that the form builders in both settings performed very similar tasks. The defendants countered by arguing that form building on building projects required more skill than on bridge construction projects; they admitted, though, that the physical tasks performed by the workers (i.e., sawing, hammering, etc.) were substantially the same in both settings. In rejecting plaintiffs’ claims, the court ruled that the evidence showed, notwithstanding that the tasks performed were similar, that wage rates varied according to the type of project involved, and that plaintiffs had been paid the prevailing wage for the class of construction in which they had been engaged.
As we review the trial court’s interpretation of K.S.A. 44-201— and especially that part of the record wherein the court concluded that it made no difference what type of project the workmen were working at, whether it be residential, apartments, or commercial — it is apparent that the court used a purely task-by-task approach in defining “same trade, occupation or work of a similar nature.” Such an approach, particularly if it implies that, for example, one who shovels cement at ground level is engaged in the “same trade, occupation or work of a similar nature” as one who shovels cement on one of the upper floors of a tall building, is incorrect.
As we interpret 44-201, application of the phrase “same trade, occupation or work of a similar nature” embodies more than simply comparing jobs on a task-by-task basis. Clearly, 44-201 was meant to prohibit the payment of lesser wages to persons working on public projects than are paid to persons working on projects of a similar nature in private industry. In addition, we have interpreted the statute to mean that a further factor must be considered. That is, by way of illustration but not by way of limitation, it seems obvious to us that one employed at a high-risk job should be paid more than a worker who performs the same “task” at a comparatively safe location. Therefore, if in the applicable locality, projects are classified or categorized for high-risk or any other reason, and if as to workers performing similar tasks, different wage-rates prevail between the different classes or categories, then 44-201 requires that the “current rate of per diem wages” be calculated according to the wages paid to workers on private projects of the same class or category as the public project involved.
It appears that in the instant case the parties conceded that appellants were employed at work designated as heavy construction. If this be true, then appellants were entitled to wages no less than those paid to the greater number of workers in the locality similarly employed in heavy construction.
The following excerpt from the transcript in this case makes it apparent that the trial court employed the wrong interpretation of K.S.A. 44-201:
“In this connection, however, I am satisfied that the statute requires- that we compare similar work in terms of the tasks done by the workmen in question. In that connection there is no basis whatsoever under this statute in my judgment to exclude from the workmen considered, in terms of determining what is that wage paid to the greater number, those who work on projects classified as residential or, for that matter, apartments or commercial.”
We specifically reject the construction applied by the trial court, and hold that hereafter, computation of “current rate of per diem wages” under 44-201 shall be made in accordance with the statements of law made in this opinion.
Having concluded our discussion of the major issue in this case, a second issue must be addressed: namely, was the evidence adduced by appellants insufficient, even under the above construction of the law, to support a recovery by them?
The record in this case is a voluminous one, the evidence consisting primarily of opinion testimony by expert witnesses. These witnesses were business representatives from three union locals, a statistician, and an employee of the U. S. Department of Labor.
The union men examined the work summary, and each testified as to what tasks would fall within his union’s jurisdiction and what would be the union scale wage for such tasks. Each union representative also opined that approximately 90 percent of the commercial construction projects in the Topeka area in 1978 paid union scale wages to the laborers; no numerical estimates of how many workmen these projects involved, compared to the total number of workmen on all commercial construction projects, were given. Each union representative admitted that laborers on different types of construction projects do perform tasks of a similar nature, but each also pointed out that the union scale wage varied, under the terms of applicable collective bargaining agreements, according to the type of construction project involved. These variations were said to be due in part to small differences in the degree of skill required for the different classes of construction and in part to different profit margins in the different classes of construction.
The employee of the Department of Labor testified concerning the wage rate delineations of the Davis-Bacon Act. He did not offer testimony regarding the prevailing wages in the Topeka area; his opinions regarding the legal meaning and effect of K.S.A. 44-201 are of questionable foundation.
Appellants’ final witness, the statistician, presented the results of a survey taken in the Topeka area for the year in question, 1978; it was confined to workmen performing similar tasks on similar projects. This witness expressed his opinion, based on his survey, that the majority, or “greater number” of workmen per forming similar tasks on similar projects in the relevant area and during the appropriate time period, were paid union scale wages.
K.S.A. 1981 Supp. 60-241(b) provides in part as follows:
“After the plaintiff, in an action tried by the court without a jury, has completed the presentation of the plaintiff’s evidence, the defendant, without waiving the defendant’s right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in subsection (a) of K.S.A. 60-252.”
Generally, when ruling on a motion for involuntary dismissal under K.S.A. 1981 Supp. 60-241(b) at the close of plaintiff’s case, a trial judge sitting without a jury has the power to weigh and evaluate the evidence in the same manner .as if he were adjudicating the case on the merits and making findings of fact at the conclusion of the entire case. In re Estate of Ewers, 206 Kan. 623, Syl. ¶ 1, 481 P.2d 970 (1971). On appellate review of an order of involuntary dismissal entered as per the situation above, the findings of fact made by the trial court will be upheld if there is substantial evidence to support them, and the evidence will be viewed in the light most favorable to the party prevailing at trial. Armstrong v. City of Salina, 211 Kan. 333, Syl. ¶ 6, 507 P.2d 323 (1973); Burks v. Whalen, 208 Kan. 222, Syl. ¶ 2, 491 P.2d 940 (1971).
The trial court in the instant case made no findings of fact. Moreover, the single conclusion of law stated by the court has been herein declared by this court to be erroneous.
The following excerpt from the record indicates that the trial court would probably have denied appellee’s motion to dismiss if it had applied the construction of 44-201 which we have herein adopted. The trial judge said:
“Now, I do think, in this connection, that the defendant should be on notice that the only reason that this case fails, in my judgment, is because we do not have before us today adequate information to determine what the prevailing — I should use the statutory language — the per diem wage is for similar — as to what similar work is in this community.”
This case must be reversed. We remand same to the district court, with instructions to reevaluate appellee’s motion in light of the construction of K.S.A. 44-201 expressed in this opinion. The court may elect to receive additional evidence if it deems it necessary to do so. Whether the trial court again sustains said motion, or whether same is overruled and a full trial is had, the court is directed to make specific findings of fact and conclusions of law as required by K.S.A. 1981 Supp. 60-241 and K.S.A. 60-252.
Reversed and remanded with directions. | [
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Foth, C.J.:
After trial to the court defendant was convicted of “unlawful use of weapons” in violation of K.S.A. 1980 Supp. 21-4201(1)(d), which proscribed:
“Carrying any pistol, revolver or other firearm concealed on the person except when on his or her land or in his or her abode or fixed place of business . . . .”
(The statute has since been amended in a minor way, basically to substitute “person’s” for “his or her.”) He appeals, challenging the constitutionality of the statutory subsection as an overbroad, oppressive and unreasonable exercise of the police power.
The facts are undisputed. In October, 1980, while a registered guest at a Wichita motel, defendant engaged in a verbal altercation with the motel’s employees and manager. A pistol was observed in defendant’s waistband, and the manager called the police. Upon their arrival they were steered to defendant in the manager’s office. Asked where his weapon was, defendant said, “With me.” a pat-down revealed a loaded .357 magnum under defendant’s jacket, in his waistband near the small of his back. The present charge and conviction followed, with the appeal limited to the single issue of constitutionality, duly raised below and renewed here.
Defendant’s basic contention is that the statute offers a citizen no practical way to transport a weapon lawfully from one place to another — a citizen brandishing an “unconcealed” pistol on the streets of Wichita while going from home to office, he says, would soon draw the attention of the local constabulary. He relies heavily on City of Junction City v. Mevis, 226 Kan. 526, 601 P.2d 1145 (1979). Although we do not draw all the same conclusions from that case as does defendant, we agree it is almost dispositive of this appeal. At least it appears to confer standing on defendant to raise the constitutional issue even though he does not fall within the class of persons he claims is adversely affected by the claimed constitutional flaw.
Our analysis, however, starts with the earlier Junction City ordinance considered in City of Junction City v. Lee, 216 Kan. 495, 532 P.2d 1292 (1975). The ordinance then in question closely paralleled K.S.A. 21-4201 except that it contained a flat prohibition against carrying firearms on the person or in a vehicle, concealed or unconcealed. It made exceptions for, inter alia, hunters and fishermen and for carrying unloaded weapons to or from a gunsmith or dealer. Overall, the court noted, the ordinance imposed stricter controls over the possession of firearm's than the statute. This feature of the ordinance was found unobjectionable, the court noting:
“Evaluation of the wisdom or necessity of the Junction City enactment of a weapons control ordinance more rigid than statutory law is not within our province, although the city fathers undoubtedly were aware of the fact that in situations where passions or tempers suddenly flare easy accessibility of weapons, whether carried openly or concealed, may contribute to an increased number of fatalities, and further that their own problem is rendered more acute by the presence of an adjoining military reservation from whence combat troops trained in the use of handguns and knives sometimes repair to the city during off-duty hours. In an earlier era the cowboy entering the Kansas cowtown was frequently required to deposit his gunbelt with the marshal.” 216 Kan. at 501-2.
Implicit in this statement is a recognition of the amenability of weapon use to the general police power.
Four years later, when Mevis was decided, the court was looking at a significantly different Junction City ordinance. From our standpoint the most significant change was the deletion of the exemption for transportation to and from gunsmiths and dealers. It was still lawful to buy and sell guns, and to have them at home or at work, but there was in the court’s view a flat prohibition against transporting them. As the court put it:
“The difficulty with the city ordinance in question here is that it clearly and unequivocally prohibits any non-exempt person within the city limits of Junction City from having in his possession a firearm, except when he is on his own land or in his abode, fixed place of business or office. Anyone reading the ordinance could only conclude that, unless he fell within the category of exempted persons, he could not lawfully transport a firearm from the place where he purchased it or had it repaired or between his office and his home without being in violation of the ordinance. The fact that the Junction City police have taken the benign position that the ordinance should be enforced only against those who have no good reason to have a gun does not make the express language of Ordinance 12-410 any less unreasonable and oppressive. We have no doubt that the governing body of the city of Junction City can enact a valid gun ordinance, thus correcting the infirmities now existing. It is not up to the courts to engraft exceptions to legislative enactments which were not placed there by the legislative body which adopted the statute or ordinance.” 226 Kan. at 535. Emphasis added.
The infirmity which the court found in the revised Junction City ordinance simply does not exist in the statute. The only thing the state prohibits is the carrying of a firearm “concealed on the person.” If not “concealed” or not “on the person” transportation of a firearm is perfectly lawful so far as the state is concerned. While, as the Lee court remarked, the town marshal might require the cowboy to deposit his gunbelt, the State permits him to wear it so long as he does it openly.
The rationale of the State approach was suggested in State v. Chiles, 226 Kan. 140, 595 P.2d 1130 (1979). There an equal protection argument was lodged against K.S.A. 21-4204, prohibiting certain ex-felons from possessing guns with barrels less than twelve inches but permitting them to possess guns that are longer. The court responded:
“The appellant’s contention that the distinction between firearms with a barrel length less than twelve inches from those with a barrel length more than twelve inches bears no rational relation to any state interest also lacks merit. In general the possession and use of dangerous weapons is a sufficient hazard to warrant prohibition except under special circumstances which may create justification. People v. Musselman, 69 Ill. App. 2d 454, 217 N.E.2d 420 (1966). Statutes preventing concealed weapons, except under circumstances which give rise to justification, are aimed at keeping the public from going about secretly armed. Inescapable is the idea of notice. If a man knows another man is armed he would behave differently in the event of an affray than if he did not.” 226 Kan. at 142-3. Emphasis added.
The statute, in short, is aimed only at the weapon concealed on the person, a peril judicially recognized as a fit subject of special legislative attention.
Defendant envisions difficulty for the hypothetical “good citizen” in getting his weapon from one place to another. Some difficulty there may be, but there is not the absolute barrier found fatal to the ordinance in Mevis. From house to car presents no problem; he will be at his “abode” for most if not all of the trip. While in the car there is no problem; the gun may lawfully be in the trunk, on the seat, under the seat, or in the glove compartment. It may be concealed so long as it is not “on the person.” A short walk from car to gunsmith or business presents only a brief problem; while the gun must be visible it need not be carried in a manner which implies a threat of use. It is only the person who would walk several blocks down Main Street at high noon, gun in hand and finger on the trigger, who might attract some unwanted police attention. Even then, of course, there would be no violation of the law but only the inconvenience of explaining one’s intentions. We are not prepared to say this potential for inconvenience outweighs the legislative interest in controlling concealed weapons or the strong presumption of constitutional validity of the statute, recognized in Mevis and countless other decisions.
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|
Bullock, J.:
This is an appeal from a judgment of the trial court dismissing plaintiff’s personal injury action on the grounds that it had not been commenced within the applicable statute of limitations. The material facts are undisputed.
On October 10, 1977, plaintiff, Robin R. Dunn, “stepped into a meter tile causing injuries to herself.” Thereafter, she filed a timely claim with the City of Emporia, which was denied.
On October 10, 1979, exactly two years after the incident, plaintiff filed a petition in the Lyon County District Court which was assigned case No. 79C602 (Dunn I). Paragraph one of the petition stated that service could be had upon the defendant city by serving the city clerk or mayor. Thomas E. Gleason, Jr., plaintiff’s attorney, testified that he personally brought the petition to the office of the clerk of the court to be filed. He further stated:
“[I] spoke at the time of filing with one of the personnel in the clerk’s office. I do not know — I do not have a conscious recollection of which person it was to whom I spoke.
“I suggested to the clerk that she might determine the City’s normal procedure in receiving service of summons and that that procedure might be carried out. The clerk’s office, whoever I spoke to, indicated that that would be all right. Having left the Petition and service and copy, and receiving a receipt for the filing fee, I left and returned to Ottawa. I at no time suggested by word, design or deed, or omission thereof, that service should be accomplished by service upon the city attorney.”
When summons was issued, however, it was directed to the City of Emporia by serving the city attorney, Merlin Wheeler. The Return of Service indicates Mr. Wheeler was served personally.
The City answered on November 13, 1979. Among the affirmative defenses raised by the City in that answer was improper service of process. At this time, plaintiff had about 60 days remaining under K.S.A. 60-203 to check the clerk’s file, discover the inadequate service and obtain service on the clerk or mayor. Instead, plaintiff ignored the warning of defendant’s answer and merely replied, on November 28, 1979, denying all affirmative defenses.
On November 13, 1980, Dunn I was dismissed for lack of prosecution, the court not having ruled on any of the affirmative defenses presented in defendant’s answer. On December 22, 1980, the petition in this case, alleging the same cause of action and assigned case No. 80C1074 (Dunn It), was filed. Praecipe for summons in Dunn II was directed to the city clerk of the City of Emporia and the return of service indicates the clerk was personally served.
On February 11, 1981, defendant filed a motion to dismiss, alleging (1) that the petition in Dunn II failed to state a claim upon which relief could be granted and (2) a violation of the statute of limitations. Following a hearing and arguments of counsel, the trial court granted the City’s motion to dismiss on statute of limitations grounds. This appeal followed. Plaintiff raises two points on appeal for our review:
1. Did service of process on the city attorney constitute substantial compliance with the provisions of K.S.A. 60-304(d)?
2. Was service of process on the city attorney, even if not in substantial compliance with K.S.A. 60-304(d), merely voidable and therefore sufficient to “commence” an action for purposes of K.S.A. 60-518?
We will discuss these issues in the order presented.
1. The petition in Dunn II was clearly filed outside the applicable two-year statute of limitation period. That period expired on October 10,1979, and the Dunn II petition was not filed until December 22, 1980. However, K.S.A. 60-518 provides:
“If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if the plaintiff die, and the cause of action survive, his or her representatives may commence a new action within six (6) months after such failure.” Emphasis added.
Thus, if Dunn I was “commenced within due time,” Dunn II would not be violative of the statute of limitations inasmuch as it would have been commenced within six months of the dismissal of Dunn I for lack of prosecution, a dismissal clearly “otherwise than upon the merits.”
The “due time” for commencement of an action, referred to in K.S.A. 60-518, is governed by K.S.A. 60-203:
“A civil action is commenced by filing a petition with the clerk of the court, provided service of process is obtained or the first publication is made for service by publication, within ninety (90) days after the petition is filed; otherwise the action is deemed commenced at the time of service of process or first publication. An entry of appearance shall have the same effect as service.”
The petition in Dunn I was filed October 10,1979, and service of process was had on the city attorney on a date which is undisclosed but which was clearly within ninety days of the filing of the petition. The question for review thus becomes: Was this service of process sufficient to “commence” the action?
The statutory method for service of process applicable to the case at issue is K.S.A. 60-304(d), which provides in relevant part:
“Service shall be made as follows:
“(d) Governmental bodies. . . . [U]pon a city, by delivering a copy of the summons and of the petition to the clerk or the mayor. . . .”
As previously noted, service in Dunn I admittedly was not made upon the clerk or the mayor. Plaintiff nonetheless points to K.S.A. 60-204, which provides:
“The methods of serving process as set forth in article 3 of this chapter shall constitute sufficient service of process in all civil actions and special proceedings, but they shall be alternative to, and not in restriction of different methods specifically provided by law. In any method of serving process, substantial compliance therewith shall effect valid service of process if the court finds that, notwithstanding some irregularity or omission, the party served was made aware that an action or proceeding was pending in a specified court in which his or her person, status or property were subject to being affected.”
Plaintiff argues that under the facts of Dunn I, service on the city attorney constituted “substantial compliance” with the method specified in K.S.A. 60-304(d) and that, inasmuch as the City of Emporia was made aware the action was pending, the service should be held valid.
K.S.A. 60-204 was first discussed in Briscoe v. Getto, 204 Kan. 254, 462 P.2d 127 (1969). In Briscoe, an order of garnishment was directed to B. J. Kingdon as the individual employer of the judgment debtor. The order was served on Kingdon’s secretary. No answer was filed and the judgment creditor sought judgment against Kingdon as a nonanswering garnishee. The trial court denied judgment on the grounds that the garnishment had not been properly served on Kingdon. The supreme court affirmed, holding:
“Service of process is the statutory method of obtaining jurisdiction over the person of a defendant and the method of service provided by statute must be substantially complied with. In Butler County Comm’rs v. Black, Sivalls & Bryson, Inc., 169 Kan. 225, 227, 217 P.2d 1070, we stated:
“ ‘In any action, it is essential that the trial court have jurisdiction not only over the subject matter thereof, but of the parties to the action. Jurisdiction over the person of the defendant can be acquired only by issuance and service of process in the method prescribed by the statute or by voluntary appearance, and this statutory method is exclusive of any other method of service. . . .’
“The appellants contend:
“ ‘It is obvious from the wording of the section [K.S.A. 60-204] that the legislature intended and has plainly stated that in any case where there is an irregularity, such as a service of process on an individual at his place of business by serving his secretary, the service shall be valid if “the party served was made aware that an action or proceeding was pending in a specified court in which his person, status or property were subject to being affected.’ ”
“We cannot agree with appellants’ contention. Before there can be a valid personal service of process there must be a substantial compliance with some method of process provided in K.S.A. 60-301, et seq. It is only after substantial compliance that irregularities and omissions are cured by awareness of a pending proceeding.
“This is a case of first impression and we find no precedent to guide us. However, as we read the statute it seems clear that new methods of service were not anticipated. There must first be substantial compliance with some statutory method of service. Irregularities or omissions will then be ignored if the court finds that the party to be served was made aware that an action or proceeding was pending, etc.
“There is no provision for service of summons by leaving a copy with the secretary of the person to be served or by leaving a copy at the place of business of the person to be served. Such new method of service cannot be originated by K.S.A. 60-204.” 204 Kan. at 256-57.
Briscoe’s interpretation of K.S.A. 60-204 and its holding barring the obtaining of jurisdiction over an individual defendant through service on his or her secretary was adhered to in Thompson-Kilgariff General Insurance Agency, Inc. v. Haskell, 206 Kan. 465, 479 P.2d 900 (1971); Haley v. Hershberger, 207 Kan. 459, 485 P.2d 1321 (1971); and Bray v. Bayles, 228 Kan. 481, 618 P.2d 807 (1980).
Both parties here cite, and plaintiff relies on, Chee-Craw Teachers Ass'n v. U.S.D. No. 247, 225 Kan. 561, 593 P.2d 406 (1979). In that case, a teacher’s association brought an injunction and mandamus action against the school board. The entire discussion in Chee-Craw as it relates to the present problem is as follows:
“The next point of claimed error in denying the Board’s motion to dismiss is that service of process of the petition was improper. K.S.A. 60-304(dj provides that service upon the school district shall be made by serving the clerk of the board. The clerk was absent from her office when the process server arrived. The superintendent of schools talked to the process server when he was delivering the summons. The superintendent knew the nature of the served papers and mailed copies of them to each member of the Board the following day. Nothing is to be gained by reciting any further details of the service, return of summons, or amended return of summons.
“The Association calls this court’s attention to K.S.A. 60-204, which provides:
“ ‘The methods of serving process as set forth in article 3 of this chapter shall constitute sufficient service of process in all civil actions and special proceedings, but they shall be alternative to, and not in restriction of different methods specifically provided by law. In any method of serving process, substantial compliance therewith shall effect valid service of process if the court finds that, notwithstanding some irregularity or omission, the party served was made aware that an action or proceeding was pending in a specified court in which his or her person, status or property were subject to being affected.’
“There is no showing of prejudice by the particular means of service. This point is without merit.” 225 Kan. at 563.
What plaintiff overlooks in her reliance on Chee-Craw is the balance of K.S.A. 60-304(d), not fully quoted in the court’s opinion, wherein it is provided that service upon “any other public corporation, body politic, district or authority” may be made by “delivering a copy of the summons and of the complaint to the clerk or secretary or, if not to be found, to any officer, director, or manager thereof.” (Emphasis added.) As the trial court in the present case stated, “I believe no one would have trouble construing a superintendent as the manager of a school district.” We concur.
This reading of Chee-Craw is compatible with Judge Gard’s commentary on K.S.A. 60-204:
“Proof of the fact that a party had actual knowledge of the pendency of an action against him and of its nature is not a substitute for service. Notice or knowledge must come from process itself (or valid waiver), and the summons must bear the minimum emblems of authenticity. But a rule of liberal construction is expressly established in keeping with such decisions as Kunz v. Lowden, 124 F.2d 911. Awareness of the pendency of the action or proceeding in a specified court must result from ‘such service of process’, and if awareness is apparent or established, irregularities and omissions do not invalidate the service.” Gard’s Kansas C. Civ. Proc. Annot. 2d § 60-204, p. 22 (1979).
In Bray v. Bayles, 228 Kan. at 485, the court noted that CheeCraw was not applicable to personal service “on an individual” and held it did not change the law as established in Briscoe and its progeny. Properly interpreted, therefore, Chee-Craw also is not applicable here, where the relevant portion of K.S.A. 60-304(d) specifically limits service on a city to “the clerk or the mayor.”
We therefore conclude service on the city attorney was not in substantial compliance with K.S.A. 60-304(a7) and plaintiff’s first point lacks merit.
2. In essence, plaintiff contends in her second point on appeal that inasmuch as the validity of service on the city attorney was not passed upon in Dunn I, and because service there was merely voidable, Dunn II must be deemed to have been “commenced within due time,”, for purposes of K.S.A. 60-518. In this contention, plaintiff relies on Goldsberry v. Lewis, 2 Kan. App. 2d 56, 574 P.2d 566 (1978).
In Goldsberry, the defendant, an Oklahoma resident, was served when he was present in Kansas solely to appear at a criminal action against him. A motion to quash this service was ultimately sustained on the grounds that defendant was immune from service of process when served. This ruling followed appellate remand to consider that motion. Goldsberry v. Lewis, 220 Kan. 69, 551 P.2d 862 (1976) (Goldsberry I). Plaintiff then filed another identical action (Goldsberry II) outside the statute of limitations period. The trial court dismissed Goldsberry II, apparently on the grounds that because the defendant had been immune from service Goldsberry I had not been “commenced within due time,” as required by K.S.A. 60-518. This court reversed. We noted that Goldsberry I:
“[Established the principles governing the determination of the validity of service of process in this case. The court stated:
“ ‘A nonresident of this state who is here solely to appear in a criminal action against him is immune from service of process in a civil action. Such immunity has its origin in public policy and the common law, and not in any statutory provision. Service on a person who is immune is not void, but is irregular only. The immunity is a privilege which may be waived if not claimed, and failure to assert the privilege until after judgment constitutes a waiver. See Baker v. Erbert, 199 Kan. 59, 427 P.2d 461; Phoenix Joint Stock Land Bank v. Eells, 158 Kan. 530, 148 P.2d 732; Eaton v. Eaton, 120 Kan. 477, 243 Pac. 1040; and cases cited therein.’ (Emphasis supplied.) (p. 71.)
“The February 6, 1973, service of process was not void, but irregular. Since it was voidable, it was subject to assertion of the immunity privilege prior to judgment. Thus, until set aside on July 7, 1976, it was valid service.
“Under K.S.A. 60-203, a civil action is commenced upon the filing of a petition with the clerk of the court, provided service of process is obtained within ninety days thereafter. Here, timely service of process was obtained but it was irregular and voidable upon assertion of the privilege before entry of judgment. The question before us is whether irregular and voidable service of process is sufficient to constitute commencement of an action within the meaning of K.S.A. 60-518.
“A judgment rendered without prior assertion of a privilege of immunity from service of process is neither void nor subject to successful subsequent attack. Eaton v. Eaton, supra; Phoenix Joint Stock Land Bank v. Eells, supra; Baker v. Erbert, supra. Therefore we conclude that service of process upon a party who timely asserts such privilege constitutes compliance with K.S.A. 60-203 and satisfies the commencement requirement of K.S.A. 60-518.” 2 Kan. App. 2d at 57-8.
The essence of Goldsberry II is that because service on an immune defendant would be sufficient to support a judgment unless the immunity is timely raised, such service is sufficient to “commence” the action. In the case at bar, plaintiff seeks to extend this rationale to the situation where there has not been valid service of process at all. In our view, inasmuch as the service in Dunn I was not in substantial compliance with the statute, it was not simply voidable but void. As observed in Goldsberry II, failure to raise immunity to service before judgment constitutes a waiver and prevents a collateral attack upon a judgment. Lack of valid service, however, deprives the court of jurisdiction and the judgment may be attacked at any time. Cf. Davila v. Vanderberg, 4 Kan. App. 2d 586, 588, 608 P.2d 1388 (1980); Phillips Petroleum Co. v. Moore, 179 Kan. 482, 486, 297 P.2d 183 (1956). As we held in Goldsberry II:
“An action is not commenced within the meaning of K.S.A. 60-518 where there is no service of process. Thus, K.S.A. 60-518 is not applicable where the service of process is void. See O’Neil v. Eppler, 99 Kan. 493, 494-95, 162 Pac. 311.” 2 Kan. App. 2d at 57.
In our view, service in Dunn I was void rather than voidable and that action was never “commenced” at all. Hence K.S.A. 60-518 is inapplicable and the trial court did not err in dismissing this action.
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Abbott, J.:
This appeal concerns the Uniform Simultaneous Death Law (K.S.A. 58-701 et seq.).
Roland E. Schweizer and Nancy Sue Schweizer were husband and wife. They died as the result of an accident under circumstances that all parties to this appeal agree make it impossible to prove they died other than simultaneously. Both died intestate, each being survived by four children from a previous marriage. Probate proceedings were commenced in both estates, and the administratrix of Mrs. Schweizer’s estate filed a claim in Mr. Schweizer’s estate for one-half of it as his surviving spouse. The trial court held that the property of each descended to his or her heirs-at-law as if each had survived the other. This appeal followed.
At common law, there was no presumption of either survivor-ship or simultaneous death. As a result, the burden of proof fell on whoever was attempting to establish the order of death— frequently an impossible burden. In order to bring some order out of that chaos, the National Conference of Commissioners on Uniform State Laws drafted a Uniform Simultaneous Death Act, which Kansas adopted in 1947 (K.S.A. 58-701 et seq.). That act does not resolve the unresoluble. It does not provide a presumption as to the survivor of persons who have perished in a common disaster. It does not constitute a rule of evidence. In re Estate of Cruson, 189 Or. 537, 221 P.2d 892, 20 A.L.R.2d 219 (1950). The purpose of the act is to provide substantive law to govern the devolution of property when there is no evidence that the deaths occurred other than simultaneously. In re Estate of Moran, 77 Ill. 2d 147, 395 N.E.2d 579 (1979); Brundige v. Alexander, 547 S.W.2d 232, 234 (Tenn. 1976). The theory of the Uniform Simultaneous Death Act is simple — that as to the property of each deceased, he or she is presumed to be the survivor and the property is administered accordingly. 8 U.L.A., Commissioners’ Prefatory Note, p. 606 (1972); 1 Bartlett’s Kansas Probate Law & Practice §§ 253, 261 (rev. ed. 1953).
In the case at bar, Mrs. Schweizer’s estate does not claim any interest in the property of Mr. Schweizer’s estate other than a statutory share pursuant to Kansas intestacy law. K.S.A. 59-504 states:
“If the decedent leaves a spouse and no children nor issue of a previously deceased child, all the decedent’s property shall pass to the surviving spouse. If the decedent leaves a spouse and a child, or children, or issue of a previously deceased child or children, one-half of such property shall pass to the surviving spouse.”
We believe K.S.A. 58-701 to be controlling and Mr. Schweizer’s estate must be administered as if he survived Mrs. Schweizer. His property would be subject to K.S.A. 59-506, which states in pertinent part: “If the decedent leaves a child, or children, or issue of a previously deceased child or children, and no spouse, all his or her property shall pass to the surviving child, or in equal shares to the surviving children. . . .” In this case, the estate of Mrs. Schweizer, because she is presumed to have died before Mr. Schweizer, is not entitled to a share. Likewise, Mr. Schweizer’s estate is not entitled to any share of Mrs. Schweizer’s estate, because in her probate case she is presumed to have survived him. See In re Spatafora’s Estate, 35 Misc. 2d 128, 229 N.Y.S.2d 601 (1962); In re Gerasimoff’s Estate, 96 N.Y.S.2d 142, 143 (Sur. Ct. 1950).
The trial court did not err in holding that neither Mrs. Schweizer nor her distributees have an interest in Mr. Schweizer’s estate.
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Swinehart, J.:
This is a consolidated appeal of cases numbered 53,174 and 53,539 which arise from the same criminal action. Case No. 53,174 is an appeal by defendant of the trial court’s order denying his motion to set aside or vacate the sentence imposed on defendant upon his guilty plea to the charge of attempted indecent liberties with a child in violation of K.S.A. 21-3301 (Weeks) and K.S.A. 21-3503. Case No. 53,539 is an appeal by defendant of the trial court’s order denying his motion to set aside judgment of conviction or permit defendant to withdraw his plea of guilty.
Defendant basically raises the following issues on this consolidated appeal: (1) Whether the provisions of K.S.A. 21-4604 regarding presentence investigation reports are mandatory; (2) whether a sentence imposed in violation of 21-4604 is void and illegal; (3) whether the imposition of a sentence in a felony conviction without the benefit of a presentence report, or other such current information made known to the defendant, violates due process of law; and (4) whether the trial court erred in denying defendant’s motion to set aside the judgment of conviction or permit defendant to withdraw his plea of guilty.
On November 13, 1980, defendant, a twenty-three-year-old male, entered a plea of guilty to attempted indecent liberties with a child (Class E felony) after the State reduced the charge from indecent liberties with a child and dismissed a charge of contributing to the misconduct of a child by encouraging the child to become a wayward child. The victim of defendant’s attentions is a fifteen-year-old girl. The reduction in the charge was a direct result of plea bargaining between the State, defendant and his attorney. The trial court accepted the plea after determining that it was knowingly and voluntarily made. The trial court then sentenced defendant to the Secretary of Corrections for a sentence of not less than one or more than five years. The trial court further ordered that defendant be taken to the Kansas Reception and Diagnostic Center and a report made within 120 days. It appears from the record that the trial court would have been receptive to modifying the sentence, depending on what the diagnostic report stated. The defendant then allegedly escaped from the custody of the Pratt County Law Enforcement Center on November 21, 1980, and was not returned to custody until February 12, 1981. Therefore, it was impossible for a report to be made on the defendant by the Diagnostic Center within 120 days from the sentencing as originally ordered by the court, and, consequently, the trial court lost its jurisdiction to modify defendant’s sentence under the provisions of K.S.A. 21-4603.
A Diagnostic Center report was completed on defendant after the expiration of 120 days, and the report assumed the position that further incarceration of defendant would have no deterrent effect, and probation was indicated.
The conviction of defendant was for a Class E felony. Prior to the sentencing the trial court did not order, nor did it receive, a presentence investigation report as is provided for under the provisions of K.S.A. 21-4604. Nor did the trial court make a finding that adequate and current information was available from a previous presentence investigation report, or other source. The record does indicate, however, that the sentencing judge knew defendant personally. Neither the defendant nor his attorney requested a presentence investigation report, and no objection to the lack of such a report was expressed at the time of sentencing.
On March 4, 1981, defendant, through a new attorney, moved the trial court to set aside the judgment of conviction and permit him to withdraw his plea of guilty because the plea was not knowingly, intelligently and freely made. On April 1, 1981, defendant moved the trial court for an order setting aside and vacating the sentence because a presentence investigation report was not ordered as is required by K.S.A. 21-4604. At the hearing on these motions, the trial court made the following comments concerning the way it proceeded at the sentencing, and in particular why a presentence investigation report was not ordered:
“THE COURT: The purpose of a pre-sentence investigation and report is to guide the court and assist the court in making information available to him, which is otherwise unknown. Now, in this case, and in this community, Sylvester Wright is, was then, and is well-known to me. Now, for years, and in this case the defendant was in court, I don’t know how many times in — enumerable [sic] times, almost. I didn’t need a pre-sentence investigation, because I know the defendant personally. I was the setting Judge at the Preliminary Hearing. The transcript reflects that I made reference to the Preliminary Hearing in accepting the plea that it was a — -that I had heard it and I asked Mr. Van Blaricum to make a statement concerning the facts. He made a very brief statement, and I asked Mr. Wright if those facts were substantially correct and he said, ‘Yes.’, and so I knew the facts in this case. I know the defendant personally and I relied upon that in making a determination that a pre-sentence [investigation and report] was not necessary or required. Now, it is true that I did not specifically make the finding that I was relying upon my own knowledge and information, but I don’t believe that’s an error. Now, with respect to the Diagnostic Center order, which was contained in the Journal Entry. First of all, I want to assure counsel that to my knowledge the only plea bargaining that went on was, went on between counsel and I believe that involved a reduction of the charge. Both the Prosecution and the Defense counsel approached me and wanted me to — wanted to know what my feelings were going to be about sentencing and I advised counsel, at that time, that if there was a plea of guilty entered there would be a sentence, and I presumed from that there was no further plea bargaining done. If there was, I don’t know anything about it and I asked the defendant, at the time, he entered his plea if he understood that the plea bargaining was not binding on me and he advised me he did. I remember that his, then attorney, indicated that the defendant was fearful about going to the penitentiary, and he wanted to know if his client could stay in the jail here until it was time for him to be admitted into the Diagnostic Center, and I gave due consideration to that, to the defendant’s counsel’s request and decided that that would be the thing to do. I was willing to do that much for him and I did it. Now, I’m not here to make a pre-judgment on Case No. 80CR382, so I don’t know exactly how to word this, Mr. Taylor, but by the time the Journal Entry was drawn to take the defendant to the Diagnostic Center, the defendant was no longer available to be taken and I don’t think he was abducted, but whatever he did, I don’t know that much about that, but he was not available to carry out his own request and he was not available to carry out the order of the court, which was done to accomodate [s/c] him, and I don’t see how he can come into court, now, and complain about that. I’m going to overrule your motion and we’ll take up the other matter on the 20th. Is there anything further?”
The trial court subsequently denied both motions and defendant appeals.
K.S.A. 21-4604 provides in part:
“(1) Whenever a defendant is convicted of a misdemeanor, the court before whom the conviction is had may request a presentence investigation by a probation officer. Whenever a defendant is convicted of a felony, the court shall require that a presentence investigation be conducted by a probation officer or in accordance with K.S.A. 21-4603, unless the court finds that adequate and current information is available in a previous presentence investigation report or from other sources.
“(2) Whenever an investigation is requested, the probation officer shall promptly inquire into the circumstances of the offense; the attitude of the complainant or victim, and of the victim’s immediate family, where possible, in cases of homicide; and the criminal record, social history, and present condition of the defendant. Except where specifically prohibited by law, all local governmental and state agencies shall furnish to the officer conducting the presentence investigation such records as such officer may request. If ordered by the court, the presentence investigation shall include a physical and mental examination of the defendant.” (Emphasis supplied.)
The first question presented to this court is whether the provisions of 21-4604 are mandatory. In 1978 the legislature amended 21-4604 to make a presentence investigation report or its equivalent mandatory in felony convictions. Prior to this change, K.S.A. 21-4604 (Weeks) read in part: “Whenever a defendant is convicted of a crime or offense, the court before whom the conviction is had may request a presentence investigation by a probation officer.” (Emphasis supplied.)
Two recent Kansas cases have indirectly stated that the provisions of 21-4604 are mandatory. In State v. Lovelace, 227 Kan. 348, 355, 607 P.2d 49 (1980), the court stated:
“Appellant complains because the trial court failed to request and receive a more recent presentence report. K.S.A. 1979 Supp. 21-4604(1) provides in part:
“The above law became effective January 1, 1979. Appellant was sentenced February 6, 1979. It appears from the record that appellant had been found guilty of a sex crime seven months earlier. At that time a presentence report had been filed. The exception in the mandatory presentence report statute was effective at the time of the sentencing and the court was not required to obtain a second report under such circumstances. Fairly current information was available in the previous report and no error occurred.” (Emphasis supplied.)
In Burden v. State, 225 Kan. 549, 554-55, 592 P.2d 451 (1979), the court stated:
“Under our present statutory requirements (K.S.A. 1978 Supp. 21-4604) a presentence report must be obtained in every case where a defendant is convicted of a felony. It is necessary in every case to obtain a conviction or a plea of guilty before the sentencing judge can obtain by presentence report the necessary information to determine a proper sentence.” (Emphasis supplied.)
It is clear from the above authorities that the provisions of 21-4604 are mandatory. The statute, however, does not require a presentence investigation report in every felony conviction. It contains an important exclusion: “unless the court finds that adequate and current information is available in a previous presentence investigation report or from other sources.” (Emphasis supplied.) The sentencing judge in the present case used his personal knowledge of the defendant in sentencing him, finding that since he knew the defendant personally, a presentence investigation report was not needed or required.
The decision this court must make is whether a trial judge’s personal knowledge of a defendant is an acceptable substitute for a presentence investigation report in accordance with K.S.A. 21-4604. One reason defendant offers as to why the use of a sentencing judge’s personal knowledge is not an acceptable substitute for a presentence investigation report in the present case is that the information used by the court in its sentencing was not disclosed to the defendant or to his attorney. K.S.A. 21-4605 provides in part:
“(1) The judge shall make available the presentence report, any report that may be received from the Kansas state diagnostic center or the state security hospital, and other diagnostic reports to the attorney for the state and to the counsel for the defendant when requested by them, or either of them. Except as otherwise provided in this section, all these reports shall be part of the record but shall be sealed and opened only on order of the court.” (Emphasis supplied.)
In State v. Grantom, 229 Kan. 517, 625 P.2d 499 (1981), the court was presented with the issue of whether a trial court was required to provide a defendant, personally, with a copy of a presentence investigation report when a report had been provided to the defendant’s appointed counsel and made available to the defendant. The court held that no error existed based on the following analysis:
“Defendant argues that, because the statute requires a copy of the report to be made available to defense counsel upon request and because defendant appeared pro se and represented himself at sentencing, he was entitled to his own copy of the report. The right of access to presentence reports is based on statutory and constitutional considerations. The United States Supreme Court has held that a sentence predicated on false information denies the defendant due process of law, Townsend v. Burke, 334 U.S. 736, 740-41, 92 L.Ed. 1690, 68 S.Ct. 1252 (1948), and a sentence so rendered requires vacation and remand for resentencing. United States v. Tucker, 404 U.S. 443, 447, 30 L.Ed.2d 592, 92 S.Ct. 589 (1972). To meet due process requirements, the sentencing procedure must afford a defendant the opportunity to deny or explain information considered in determining the appropriate sentence. Gardner v. Florida, 430 U.S. 349, 362, 51 L.Ed.2d 393, 97 S.Ct. 1197 (1977); Williams v. New York, 337 U.S. 241, 93 L.Ed. 1337, 69 S.Ct. 1079 (1949).
“In Kansas, as in other jurisdictions, disclosure of presentence reports is required by statute. See, 21 Am. Jur. 2d, Criminal Law § 583.5, pp. 373-375 (1980 Supp.); Annot., 40 A.L.R.3d 681. The purpose of these statutory enactments is to provide the defendant with a timely opportunity to dispute inaccuracies in the presentence report or other information which is considered in determining the sentence. See United States v. Leonard, 589 F.2d 470, 472 (9th Cir. 1979). . . . The requirement that the trial court disclose factors considered in pronouncing sentence is fulfilled when the presentence report is submitted to trial counsel and the defendant was not personally furnished with a copy. United States v. Green, 483 F.2d 469, 470 (10th Cir. 1973), cert. denied 414 U.S. 1071. The defendant bears the burden of proving that the information was erroneous, and that the court erroneously relied thereon in pronouncing sentence to the prejudice of defendant. See Shelton v. United States, 497 F.2d [156] at 160 [5th Cir. 1974]; United States v. Calvert, 523 F.2d 895, 913 (8th Cir. 1975), cert. denied 424 U.S. 911 (1976).
“Under K.S.A. 1980 Supp. 21-4605, disclosure to counsel upon request is mandated. Disclosure to defendant, however, rests within the trial court’s discretion.” (pp. 518-19.)
The record in the present case clearly shows that defendant did not request the sentencing judge to disclose what information he was using as a substitute for a presentence investigation report. We therefore find that the defendant has waived his right to object on the basis of nondisclosure since K.S.A. 21-4605 unambiguously states that a court is required to make such a disclosure only “when requested.”
Even though we recognize the importance of the presentence investigation report as required by K.S.A. 21-4604, or a definite and explicit finding that the court is using the exception to ordering a new presentence investigation report by utilizing information from another source, we fail to see under the facts in this particular case evidence of prejudice to the defendant. The record clearly shows that the parties knowingly and voluntarily approved of the sentencing procedure at the time of sentencing. We find that the information used by the sentencing judge as a substitute for a presentence investigation report was acceptable under the facts of this case.
Defendant’s final contention is that the trial court erred in denying his motion to set aside judgment of conviction or permit defendant to withdraw his plea of guilty. Defendant moved the trial court to allow him to withdraw his plea of guilty pursuant to K.S.A. 22-3210(7) which provides:
“(7) A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged. To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.”
A review of the record reveals that the plea of guilty was accepted with all of the procedural safeguards outlined in K.S.A. 22-3210. The trial court addressed the defendant personally and determined that the plea was made voluntarily and with an understanding of the consequences of the plea. The trial judge was present at the preliminary hearing and therefore was satisfied that there was a factual basis for the plea and defendant was informed that the trial court would not be bound by any plea bargaining which may have taken place between the State and defendant. Since the facts do not indicate that a manifest injustice existed, we find that the trial court did not abuse its discretion by overruling defendant’s motion to withdraw his plea of guilty.
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 sustaining a demurrer to plaintiff’s amended petition in a damage action for failure of defendant, the lessee, to remove debris from his abandoned oil and gas leasehold (under G. S. 1961 Supp., 55-132a) on land now owned by plaintiff in fee simple title.
On March 8, 1926, a ten year lease was entered into and subsequent production from seventeen oil wells extended the lease until September 1, 1959, when defendant, then owner and producer thereof, abandoned the lease, discontinued production of oil thereon and commenced removal of machinery, equipment and pipe therefrom.
Defendant Jones had failed to clean up and remove debris such as concrete floors, pits, rig corners, fragments, etc., used in the development and operation of the lease. He had also failed to fill a certain salt water pit and to remove the fence surrounding it and had failed to fill other pits so as to restore the land to the same condition it had been in before drilling and operation of the leases were commenced. The reasonable expense for restoring the land was $5,800.00 and plaintiff was damaged in that amount.
The second cause of action sought $200.00 for plaintiff’s loss of use of the land.
Defendant demurred generally to this amended petition on the ground it failed to state a cause of action against defendant and in favor of plaintiff, and the trial court sustained the demurrer. Hence this appeal by plaintiff.
Absent any consideration of G. S. 1961 Supp., 55-132a (Laws of 1957, Chap. 318, § 1) there is no question but that the trial court’s decision was correct and would have to be affirmed, following our decision in Duvanel v. Sinclair Refining Co., 170 Kan. 483, 227 P. 2d 88, (see, also, Edwards v. Solar Oil Corp., 177 Kan. 219, 277 P. 2d 614; Edwards v. Solar Oil Corp., 178 Kan. 218, 284 P. 2d 589) for the reason that the only matter the trial court had to consider was the rights and duties of the lessor and lessee as they were prescribed in the original lease in question which, as does the lease presently before us, contained no provision making it the duty of the lessee, upon abandonment of the oil and gas lease, to restore the land to its original condition suitable for agricultural purposes.
However, since the execution of this lease in 1926, the legislature enacted G. S. 1961 Supp., 55-132a, which provides:
“Leaving the surface of lands with a part of the operating structure or other equipment intact after abandoning oil or gas wells is against public policy, and constitutes a public nuisance, and shall be hereafter prohibited. Whenever any lease operator shall abandon any oil or gas well, he shall, within six (6) months thereafter, remove any rig, derrick, or other operating structure, and all abutments and other obstacles of every kind or size used in the operation of such oil or gas lease from the land upon which the well was theretofore operated, and shall grade the surface of the soil in such manner as to leave the land, as nearly as practicable, in the same condition after the removal of such structures, equipment, and obstacles as it was before such structures and abutments were placed thereon, unless the owner of said land and the abandoning party have entered into a contract providing otherwise.” (Our italics.)
Defendant contends that portion of the statute italicized above excludes this lease from the effect of the statute. The record reflects the lease is totally silent as to whose duty it is to remove debris after cessation of operations.
In determining whether the provisions of 55-132a constitute a proper exercise of legislative police power, we turn to Helmerich & Payne, Inc., v. Roxana Petroleum Corp., 136 Kan. 254, 14 P. 2d 663, where a 1927 city ordinance prohibiting the drilling of more than one oil well in a city block and providing for distribution of a share of oil produced among lot owners not permitted to drill was held to supersede the terms of a 1923 lease between a lessor and his lessee. The ordinance regulating the drilling and operation of oil wells within the city was passed by the city pursuant to power conferred by statute. Its purpose was to protect not only public and private property, but also the peace, good order and welfare of the city. In the opinion the problem inherent in similar oil and gas developments was very succinctly stated:
“The ruthlessness with which development of oil-producing land is prosecuted is a matter of common knowledge, and in such cases some regulation is necessary to prevent devastation of governmental, social and property interests of the city and its inhabitants.” (p. 255.)
In our opinion the statute in question, 55-132a, does not undertake to, nor does it, affect the original lease contract between the parties here involved, but the statute, since it involves the public interest and is a valid enactment of the legislature, does affect and control the abandonment and quitting of the lease by the leasee, which occurred in 1959.
Our conclusion is the trial court erred in its order sustaining defendant’s demurrer to plaintiff’s petition. Such order is, therefore, reversed and the case remanded with directions to overrule the demurrer, to require defendant to file his answer, and to proceed with the trial of the cause.
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The opinion of the court was delivered by
Price, J.:
These consolidated appeals arise out of actions to recover taxes paid under protest.
The question in each case is the same, and concerns the power of the defendant drainage district to impose a tax on plaintiffs railroad bridge clear to the center of the channel of the Missouri River.
The cases were tried upon stipulations of fact and the testimony of one witness. The pertinent facts are:
Defendant drainage district was organized on July 1, 1958, pursuant to G. S. 1949, 24-401, et seq. In establishing the district the board of county commissioners of Doniphan county described its boundary as:
“. . . thence Southeasterly, Southerly, and Southwesterly following the right high bank of the Missouri River. . . .”
The Missouri River borders the east boundary of the drainage district and at all points along such boundary the river is legally designated and considered to be a “navigable stream.” Plaintiff railroad company owns and maintains a bridge across the river at El wood, Doniphan county, which comes from the State of Missouri into the State of Kansas and enters the drainage district.
“Said bridge extends westerly from the center of the channel of the Missouri River, which constitutes the Kansas-Missouri state line, a distance of 1,137.2 feet. 176 feet of the Kansas portion of the bridge (15.47%) and its approaches is within the metes and bounds boundary of the Drainage District, and 961.2 feet (84.53%) of the bridge lies between the metes and bounds boundary and the Kansas-Missouri state line.” (Stip. No. 5.)
The bridge is used solely for the purpose of carrying the operating tracks of plaintiff over the river and is a part of its operating property. The valuation, for tax purposes, of the entire bridge in Kansas measured to the center of the channel of the Missouri River (the state line) was $175,000 for the year 1961. For the year 1962 it was valued at $150,000. The entire operating property of plaintiff railroad is regularly appraised and assessed by the State of Kansas as provided by G. S. 1949, 79-601, et seq. In 1961 and 1962 tax levies upon the total length of the bridge as defined and described in Stipulation No. 5 above, were made by the State, Doniphan county, a township and a school district. That is, such tax levies were imposed upon the total length of the bridge from its west end to the center of the channel of the river. The taxes so imposed were paid by plaintiff without protest and are not here involved.
In both such years defendant drainage district levied a tax upon the bridge clear to the center of the channel of the river — that being the state line. The taxes so assessed were paid by plaintiff under protest, and these actions to recover a portion thereof were timely filed.
Plaintiff concedes the right of defendant drainage district to levy a tax upon the west 176 feet of the bridge lying west of the right high bank of the river, but denies the district’s right to tax the 961.2 feet thereof lying between the right high bank of the river and the center of the channel.
Defendant drainage district contends it has the power to tax the entire length of the bridge from the west end thereof to the center of the channel of the river — that is, to the state line.
In upholding plaintiff railroad’s contention the trial court found that the property of the plaintiff within the described boundary of the drainage district was subject to taxation by the district, but that the property of plaintiff being that portion of the bridge lying between the east described boundary of the district and the center of the channel of the Missouri River, was not subject to taxation by the district, and in each case held that plaintiff was entitled to recover an amount equal to 84.53% of the total tax so paid— such percentage representing the tax on the 961.2 feet of the bridge found not to be within the district.
In these appeals by the drainage district from that decision, reliance is had in part upon G. S. 1961 Supp. 24-407, which states that each drainage district incorporated under the provisions of the act in question (subject to the superior jurisdiction of the United States over navigable waters) is granted exclusive control of the beds, channels, banks and of all lands the title to which is vested in the State of Kansas lying between the banks at high-water mark of all natural watercourses within such district; and which, in the fourth, fifth, seventh, eighth and tenth subdivisions thereof enumerates the powers and authority of a drainage district. Our attention also is directed to G. S. 1949, 24-453, which is substance provides that eveiy watercourse, any section or reach of which runs through and constitutes a boundary of any drainage district, shall, within the meaning and intent of the act, be deemed to be within such district for the distance that it runs through and constitutes such boundary thereof, and that whenever any watercourse constitutes a boundary of any drainage district such district shall have jurisdiction and control over the whole width of such watercourse between the banks at highwater mark for the distance that such watercourse constitutes such boundary.
It thus is argued that defendant drainage district, having “jurisdiction and control” of the river to the center of the channel — of necessity possesses the power to tax all of that portion of the bridge west of the center of the channel.
We believe the contention is without merit and that the trial court was correct in so concluding.
The eleventh subdivision of G. S. 1961 Supp. 24-407, above, empowers a drainage district annually to levy and collect a general tax not exceeding five mills on all taxable property within the district to create a general fund. The twelfth subdivision thereof empowers a drainage district to levy assessments and special taxes, if deemed expedient by the directors, upon all of the real estate in the district that may be benefited. Futhermore, there is nothing in G. S. 1949, 24-453, above, also relied on by the district, which empowers it to impose a tax upon property beyond its corporate boundaries.
It was stipulated that the (east) boundary of the district is the right (west) high bank of the river. It also was stipulated (No. 5, quoted above) that 176 feet of the Kansas portion of the bridge are within tihe metes and bounds boundary of the district, and that 961.2 feet of the bridge are between (east of) the metes and bounds boundary and the Kansas-Missouri state line — the state line being the center of the channel. Assuming, without deciding, that under the mentioned statutes relied on, the district, in the furtherance of its purposes and functions, has supervisory “jurisdiction and control” over adjacent areas outside its boundaries, it does not follow that it has the power to tax beyond its boundaries. 176 feet of this bridge are within the district and are subject to be taxed by it. The remaining 961.2 feet of the bridge within the State of Kansas are outside the district, and therefore, not subject to be taxed by the district.
Other contentions and authorities relied on by the district have been considered but are held to be without merit and require no discussion.
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The opinion of the court was delivered by
Fontron, J.:
This appeal is brought by the defendant, the City of Topeka, from a judgment of the district court of Shawnee County, Kansas, holding subsection (f) of ordinance 11040 to be unreasonable and, therefore, unconstitutional and void, enjoining its enforcement by the city and ordering the return to plaintiff of all sums paid by him to the clerk of the district court. Throughout this opinion, the appellant will be designated as defendant, or city, and the appellee, as plaintiff, or Watson.
The facts giving rise to this controversy are briefly, as follows: In January 1963, Watson entered into a contract with Shawnee County to erect a courthouse. A building permit was obtained from the city and construction was commenced late in the month. At that time, no fees were charged for the use and occupancy, during construction, of those parts of the city streets and sidewalks specifically covered by section 4402 of the city building code, which reads as follows:
“Sec. 4402. Material or equipment necessary for the work under a building permit may be placed or stored on public property in the following locations:
“(a) In Front of the Building Site. In the one-third portion of the roadway of the street that is adjacent to the curb in front of the building site for which a permit has been issued; provided that no material or equipment shall be placed or stored within five feet (S') of any rail or any street railway track.
“(b) In Front of the Adjoining Site. In the roadway of the street adjoining the building site for which a permit has been issued to the same extent and under the same restrictions as specified in Subsection (a).
“A due waiver of claim against the city for damages on account of such placement or storage must be obtained from the owner of such property and filed in the office of the Building Official before such materials or equipment may be placed or stored.
“(c) In the Alley. In the alley adjoining the building site for which a permit has been issued, provided that a clear and unobstructed roadway not less than Ten feet (10') in width is maintained through such alley along the building site.
“(d) Public Sidewalk in Front of Building Site. On any portion of the public sidewalk in front of the budding site for which a permit has been issued, except on the walkway required to be maintained.”
In July 1963, some six months after work on the courthouse was started, the city enacted ordinance 11040, the material parts of which read:
“(f) Fees for Temporary XJse of Public Property. Any applicant for a building permit who requests encroachment upon public streets, sidewalks or other public property to be used during construction as an area for storage of materials of construction, and/or machinery, or for the erection of fencing, barricades, sidewalks, passageways or construction offices, such area being used in such a manner as to deny the public the use of such street, alley or public property, shall pay to the Building Inspector a fee of one-quarter cent (K) per square foot per day, with a minimum fee of Five Dollars ($5.00).
“Payment for space shall be made in advance at the daily rate established herein, and, at the discretion of the Building Inspector, a permit for such storage or encroachment may be issued for a monthly or longer basis.”
In compliance with this ordinance and in response to the city’s requirement, the plaintiff paid the sum of $223.20, under protest, for the temporary use of 2,880 square feet of the abutting streets for a thirty-day period, and commenced this action to enjoin enforcement of the ordinance. By agreement of the parties, the court ordered fees under the ordinance to be paid into the office of the clerk of the district court pending the outcome of the trial.
After a trial on the merits in which evidence was presented by both parties, the trial court found the charge imposed by ordinance 11040 (f) was unreasonable as being “all out of proportion” to the cost of inspection and regulation and held the ordinance to be “unreasonable and invalid” and “therefore unconstitutional and void.” In appealing from this decision, the city raises two principal points: First, that Watson has no legal capacity to maintain this action, and second, that ordinance 11040 (f) is not unreasonable, unconstitutional or void, but is a proper exercise of police power. We shall consider these in order.
Although a private person may not, in general, maintain an action to vindicate or enforce a mere public right in which his interest is no different than those of the public in general (Dunn v. Morton County Comm'rs, 162 Kan. 449, 177 P. 2d 207), the rule is subject to a well recognized exception. Where an individual suffers damage different in character from that sustained by the public at large, he is held to be entitled to maintain an action to restrain illegal acts by public officials. (28 Am. Jur., Injunctions, § 178, p. 680.)
This exception has been recognized in Kansas. In Peoples Taxicab Co. v. City of Wichita, 140 Kan. 129, 34 P. 2d 545, it was held that the plaintiff cab company had a right to question the validity of a city ordinance which required taxicabs to be licensed, set the license fees to be charged, and required insurance to be carried. To like effect is Home Cab Co. v. City of Wichita, 140 Kan. 451, 36 P. 2d 1012.
In Butler v. Rude, 162 Kan. 588, 178 P. 2d 261, this court ruled tihan an insurance company and a licensed embalmer, proposing to act as the company’s agent, were proper plaintiffs in an action to enjoin the State Embalming Board from enforcing its rule prohibiting sale of burial policies by embalmers. See also Tripp v. Board of County Commissioners, 188 Kan. 438, 362 P. 2d 612 and Reeder v. Board of County Commissioners, 193 Kan. 182, 392 P. 2d 888.
We believe that Watson is a proper plaintiff in this lawsuit. Even though plaintiff will be accorded no different treatment under the ordinance than other building contractors similarly situated, there can be no denial that the ordinance will adversely affect Watson’s interests. Nor can it be gainsaid that Watson and other contractors in the same category will suffer damage of a nature not sustained by the public in general.
Although the city cites numerous authorities as supporting the ordinance, none are factually in point. Each case involves a situation where the plaintiff’s interest was obviously no different in kind or character than that of any other member of the general public. The case of Haines v. Rural High School Dist. No. 3, 171 Kan. 271, 232 P. 2d 437, is representative. That action was one to enjoin the illegal expenditure of funds voted for one purpose but diverted to another. Relief was denied on the ground that plaintiff had suffered no special damage. Syllabus 2 of the opinion reads:
“In order for an individual to maintain an action of the character above mentioned he must plead and prove that he has sustained special damage different in kind from that of the public generally.”
In our opinion, there is no merit in the defendant’s contention that Watson lacks the capacity to maintain this action.
We turn now to the second point raised by the city in this appeal: Is subsection (f) of ordinance 11040 a valid and constitutional exercise of the police power? The city, in maintaining an affirmative position, seeks to justify the ordinance on the ground that its purposes are to regulate the use of the city streets, sidewalks and alleys, and to control and manage traffic thereon.
From an early date this court has recognized a landowner’s right temporarily to deposit, in abutting streets, building materials required to improve his property, even though the public may to some extent be inconvenienced. (Kansas City v. McDonald, 60 Kan. 481, 57 Pac. 123; Longnecker v. Railroad Co., 80 Kan. 413, 420, 102 Pac. 492; Tepfer v. City of Wichita, 90 Kan. 718, 721, 136 Pac. 317.) Without abandoning this position, we nonetheless believe that it must be conceded today that cities may, in the proper exercise of their police powers, regulate the extent to which public streets, alleys and sidewalks may be used for storage purposes by adjacent property owners and builders. The right of reasonable regulation may plausibly be assumed from the language of G. S. 1949, 12-1630 (now K. S. A. 12-1630), which provides:
“That nothing in this act shall prevent any person, who may be improving his property, from encumbering the streets, avenues or alleys, under a permit from the proper officers of the city, but in the event of such encumbering of the streets with building material or earth, necessary for the improvement being made, the contractor shall clean up said premises thoroughly within ten days from the completion of the work.” (Emphasis supplied.)
Acting in the exercise of its police power, the city of Topeka enacted section 4402 of the building code which limits the placing and storage of material and equipment to the one-third of the street which is nearest the curb in front of, and adjoining, the building site, and to adjacent alleys and sidewalks, provided space is left for passage. These limitations appear to be a reasonable exercise of the city’s responsibility to further the safety and general welfare of its citizens. In Jones v. Garrett, 192 Kan. 109, 386 P. 2d 194, we said:
“It has been held a valid exercise of the police power of this state to regulate, limit and control the use of its highways in order to promote the safety and general welfare of the people, and this power extends to use by nonresidents as well as residents. (Riddle v. State Highway Commission, 184 Kan. 603, 339 P. 2d 301; Smith v. State Highway Commission, 185 Kan. 445, 346 P. 2d 259.)” (p. 116.)
But the city, through a later ordinance, 11040 (f), seeks to extend the scope of its regulatory power by exacting payment of $0.0025 per day per square foot of space occupied, and now contends that the ordinance is a “valid exercise” of its police power and is a “regulatory and not a revenue raising measure.” Watson disputes this contention and asserts that the measure is not a reasonable regulation of the use of city streets, but a revenue measure masquerading in the guise of police power. These opposing viewpoints define the crux of this lawsuit.
Before the ordinance may be sustained as a legitimate and valid exercise of the police power, it must bear a rational relationship to the rightful regulation of the use and management of the city streets. In State v. Consumers Warehouse Market, 183 Kan. 502, 329 P. 2d 638, we discussed the constitutional requirements of legislation enacted under the police power and, after holding that the purpose of the legislation there being considered fell within the police power of the state, we said:
“Notwithstanding the conclusion just announced, there still remains for determination whether the means chosen by the legislature are reasonably designed to accomplish the purpose of the Act, i. e., are its terms arbitrary, discriminatory, or demonstrably irrelevant to the legislative policy? This is the test of due process in the exercise of police power announced in Nebbia v. New York, [291 U. S. 502, 78 L. Ed. 940, 54 S. Ct. 505] . . (p. 508.)
The thrust of the plaintiffs argument, specifically stated, is this: That the fees set by section (f) of ordinance 11040 are not reasonably related to the costs of inspection necessitated by, or the other expenses eventuating from, the temporary occupancy of those parts of city streets, sidewalks and alleys permitted by section 4402 of the building code. If the plaintiff’s argument be factually sound, and the trial court found the facts in Watson’s favor, then, under familiar precedents, ordinance 11040 (f) is not a valid exercise of the city’s police power but a measure for the raising of revenue.
In State, ex rel., v. Cumiskey, 97 Kan. 343, 155 Pac. 47, this court considered the validity of a law requiring inspection of petroleum products and prescribing a schedule of inspection fees, one-half of which were retained by the inspectors as compensation for their services, and the balance paid to the state treasurer. It was there held that the fees grossly exceeded the amounts reasonably required to effectuate the lawful purposes of the act and that the section of the act, which fixed the fees, was void.
The rule announced in Cumiskey was recognized in State, ex rel., v. Ross, 101 Kan. 377, 166 Pac. 505, although in this case it was held that the fees required of exhibitors to defray the cost of inspecting motion picture films were not so disproportionate to the expenses involved as to constitute the act a revenue measure.
A more recent case is City of Beloit v. Lamborn, 182 Kan. 288, 321 P. 2d 177, where a city ordinance required a distributor of fluid milk to obtain a permit and to pay a fee. The defendant contended that the fee required was unreasonable and oppressive. In sustaining the validity of the ordinance, we held:
“The disproportion between the amount of fees collected under an ordinance of a city of the second class purporting to be an inspection measure and the expenses incurred in its execution will justify a court in holding the ordinance to be invalid only when one of two conditions is met: either the discrepancy must be so great that the court is forced to the conclusion that the city in the first instance acted in bad faith and intended to provide a revenue under the pretext of requiring an inspection, or else the city must have neglected an opportunity to revise the charges exacted after experience had shown those previously imposed to be excessive.” (Syl. f 5.)
Our latest decision on the subject is Panhandle Eastern Pipe Line Co. v. Fadely, 183 Kan. 803, 332 P. 2d 568. In this case an act of the legislature directed the state corporation commission to assess against the parties involved in any hearing the costs incurred therein and also all costs incurred in investigations, etc. The act further provided that twenty precent (20%) of collections be credited to the state general fund and eighty percent (80%) be used in administering the act. In declaring the act invalid, we held:
“Under its police power, the state may reimburse itself for the cost of regulating and supervising a business or commodity by assessing the necessary expenses to such business or commodity which created the necessity for such regulation and supervision.
“Where a statute which purports to assess expenses of regulation and supervision shows on its face that some part of the exaction is to be used for other purposes, the police power is exceeded and the statute is void.” (Syl. ft 1, 2.)
The principle threading through the above cases is applicable here. It must, then, be determined whether the fees fixed by the ordinance are reasonably related to the expenses they were intended to pay. This presents a factual question. As we have previously mentioned, the trial court found the charges to be out of all proportion to the costs involved, and this finding must control if it be supported by substantial competent evidence.
There is evidence in the record that if plaintiff were to use the entire area permitted by section 4402 of the building code for the year and one-half estimated to complete the courthouse, the cost would approximate $52,000.00; that this sum lacks but $9,000.00 of paying the total yearly salaries of the building inspector and his assistants; that the fees which Watson would have paid under the ordinance would nearly equal the department’s entire income from building permits for 1961; that on-site inspections are made once a week; that only building contractors are required to pay fees for use of the street; that the fees go into the city general fund, where they are not allocated to pay expenses of the city building inspector but are used to pay general city expenses; and that the city traffic engineer would not need additional money because of the use of part of a street. In view of the foregoing evidence, we are obliged to hold that the findings of the trial court are sufficiently sustained by the evidence.
The city stresses our decision in City of Hutchinson v. Harrison, 173 Kan. 18, 244 P. 2d 222, as supporting its position. We believe, however, that the facts clearly distinguish that case from the present one. The parking meter ordinance, which the Harrison case upheld, provided that proceeds from the meters should go into a separate parking meter fund for use in regulating and controlling traffic, acquiring off-street parking facilities, and purchasing, regulating and maintaining parking meters. The costs and expenses involved in effectuating all such purposes were held to bear a rational relationship to the revenues obtained from the meters. We recognized the rule stated in State, ex rel., v. Cumiskey, supra, and in other cases herein cited, when in the Harrison case we said:
“. . . that the great weight of authority in this countiy sustains the validity of parking meter ordinances when such ordinances are enacted in the exercise of police powers conferred by statute if they are neither palpable nor on their face revenue measures or arbitrary, oppressive, unreasonable, and discriminatory.” (p. 22.) (Emphasis supplied.)
No further comment on Harrison is necessary except to say that the revenues there were found not so clearly in excess of sums properly expendable for purposes related to traffic control and to acquiring and operating parking facilities as to characterize the ordinance a revenue measure. The same cannot be said of ordinance 11040 (f) in view of the trial court’s finding based on evidence which we deem both substantial and competent.
In our judgment, the evidence shows subsection (f) of ordinance 11040 to be designed primarily for the production of revenue. No reasonable relationship is perceived between the fees exacted and the defrayal of inspection and other expenses incidental to the use of those parts of the streets, alleys and sidewalks permitted by section 4402 of the building code. The ordinance thus exceeds the legitimate police powers of the defendant city. As a revenue raising measure subsection (f), ordinance 11040, violates Article 11, Section 1, of the Kansas Constitution, declaring that the legislature shall provide for a uniform and equal rate of assessment and taxation. (State, ex rel., v. Cumiskey, supra; Panhandle Eastern Pipe Line Co. v. Fadely, supra.)
We must conclude that subsection (f) of ordinance 11040 is unconstitutional and void. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
This is an action by the plaintiff, Anna E. Schmidt, to recover damages for personal injuries sustained in a collision between the Chrysler car in which she was riding and a truck driven by the defendant, Ben Waldo Cooper. The case was tried to a jury which returned a verdict in plaintiff’s favor for $4,014.38. Plaintiff’s motion for a new trial was sustained in part by the court, and a new trial was granted on the question of damages only. From this ruling, the defendant has appealed. Throughout the course of this opinion we shall refer to the appellee as plaintiff, and appellant as defendant.
The evidence fairly shows the following facts: The accident occurred about 1:00 p. m., November 11, 1960, on a blaclc-top highway, about nine miles east of Anthony, Kansas, and a short distance west of a private driveway leading onto the highway from the south; the Chrysler car, which was driven by plaintiff’s husband, was traveling west at a speed of 65 miles per hour; at a point two-tenths of a mile east of the private driveway, the plaintiff and her husband observed the defendant drive his truck up to the highway from the south and stop; plaintiff’s husband continued to drive toward the west, believing that the defendant would wait for him to pass, but when the Chrysler was only 200 feet east of the driveway, the defendant started his truck and drove it out of the driveway and onto the highway, making a wide circular or “hayrack” turn to the northwest and then back across the road to the south, crossing the center line; on observing defendant come onto the highway in front of him, plaintiff’s husband immediately applied his brakes and tried to pass the truck on the left-hand or south side of the road, but there was not enough room to pass or avoid hitting it, and the cars collided about 22 feet west of the driveway and 41 feet east of a small bridge.
The evidence further disclosed that the impact occurred just 5 feet north of the south edge of the road; that the Chrysler car, in which plaintiff was riding, was from 6 to 6/1 feet in width; that it laid down 74 feet of skid marks; and that the total stopping distance of a car traveling 65 miles per hour on a road such as the one here involved is in excess of 300 feet. Although his own witness stated there was unobstructed vision for 1600 feet east of the driveway, the defendant testified that he swung out onto the highway because he did not see anything coming; that after getting on the highway, he swung back from the north onto the south half of the road in order to miss the bridge, and was on the south half of the road at the time of collision.
The evidence which pertained to the injuries suffered by plaintiff need not be related other than to say it showed she sustained a fifteen per cent disability; that she suffered much pain and discomfort, which continues to this day; that she cannot perform many of the household duties, farm chores, and other functions which she formerly carried on; and that her medical expenses have amounted to $1,014.38.
The defendant’s specifications of error are three in number: (1) Refusing to give defendant’s requested instruction No. 1; (2) overruling defendant’s objections to instructions Nos. 14 and 15; and (3) granting plaintiff’s motion for a new trial limited to the issue of plaintiff’s damages.
The first two specifications of error refer to trial errors (State v. Aeby, 191 Kan. 333, 381 P. 2d 356), and the defendant’s failure to file a motion for new trial precludes our consideration of the matters therein set forth. It has been the invariable rule of this court that trial errors must have been raised on a motion for a new trial in the lower court before they will be considered on appellate review. (1 Hatcher’s Kansas Digest, rev. ed., Appeal and Error, § 366, p. 166; 2 West’s Kansas Digest, Appeal and Error, § 281, pp. 347-9.)
Thus, the single question now before us for decision is this: Did the trial court commit error in granting plaintiff a new trial on the question of damages only?
It cannot be doubted that in this jurisdiction the granting of a motion for a new trial rests within the sound discretion of the trial court (Barajas v. Sonders, 193 Kan. 273, 392 P. 2d 849; Schroeder v. Texas Co., 169 Kan. 607, 219 P. 2d 1063), and that an order setting aside a verdict and allowing a new trial will not be reversed in the absence of a clear abuse of discretion. (Clark v. Southwestern Greyhound Lines, 146 Kan. 115, 69 P. 2d 20; Slocum v. Kansas Power & Light Co., 190 Kan. 747, 750, 378 P. 2d 51.)
In Bishop v. Huffman, 175 Kan. 270, 262 P. 2d 948, the court said:
“. . . the granting of a motion of such nature rests so much in the trial court’s sound discretion that its action with respect thereto will not be held to constitute reversible error on appellate review unless the party complaining thereof has clearly established error with respect to some pure, simple, and unmixed question of law. . . .” (pp. 274, 275.)
Not only does a trial court possess authority to order a new trial, absent an abuse of discretion, but it rests under a duty to vacate a verdict of which it disapproves and to direct that the cause be tried anew. (Raines v. Bendure, 166 Kan. 41, 199 P. 2d 456; Myers v. Wright, 167 Kan. 728, 208 P. 2d 589.) Such was our ruling in Nicholas v. Latham, 179 Kan. 348, 295 P. 2d 631, where it was held:
“When a verdict rendered by a jury does not meet the approval of the trial court, no duty is more imperative than to set the verdict aside and grant a new trial.” (Syl. f 2.)
The right of a trial court to grant a new trial is not dependent on whether a verdict is in favor of the plaintiff or of the defendant. Neither does the exercise of the power depend upon whether, in the court’s considered judgment, the amount of the jury’s award is excessive or is inadequate. The authority to set aside a verdict and to grant a new trial exists whenever, for any reason not clearly arbitrary or capricious, the trial court finds itself dissatisfied with the verdict which has been returned. (McClay v. Highway Commission, 185 Kan. 271, 341 P. 2d 995; Angell v. Hester, 186 Kan. 43, 348 P. 2d 1050.)
We discern no abuse of discretion in setting aside the verdict in this case. The injuries were severe, the resulting disability substantial, and the medical expenses heavy, exceeding $1,000. In addition, the jury ignored the trial court by refusing to include in its verdict any allowance for the husband’s loss of his wife’s services and consortium, as they had been instructed to do should they find for the plaintiff. In commenting on the insufficiency of the award, the court characterized it as “grossly inadequate,” stated that it would “be a travesty on justice” to approve the verdict, and observed that the jury “disregarded some of the instructions.” We think it may not be said that disapproval of the verdict was arbitrary or ill-conceived.
The contention most seriously urged by defendant is that error was committed in granting a new trial limited to the question of plaintiff’s damages. We turn our attention to this claim.
G. S. 1949, 60-3004, confers authority upon a trial court to grant a new trial limited to a single issue where the issues involved are susceptible of separation. In Rexroad v. Kansas Power & Light Co., 192 Kan. 343, 388 P. 2d 832, the court noted the power granted by this statute and upheld an order of the trial court awarding plaintiff a new trial as to damages only. In the course of its opinion, the court quoted from Henderson v. Kansas Power & Light Co., 188 Kan. 283, 362 P. 2d 60, wherein it was said:
“ ‘Concededly, negligence and damages are legally separable issues, and on many occasions this court has granted new trials on the issue of damages alone. . . .’” (p. 356.)
Numerous cases may be found among the decisions of this court wherein orders granting new trials on the issue of damages alone have been upheld. Among them, see Hohmann v. Jones, 146 Kan. 578, 72 P. 2d 971; Home Insurance Co. v. Boehm, 170 Kan. 593, 228 P. 2d 514.
The defendant places much reliance on Henderson v. Kansas Power & Light Co., supra, where we reversed an order overruling a motion for a new trial and returned the case for trial on all issues. This decision was predicated on the premise that where, from conflicting evidence as to liability, or from other circumstances appearing in the case, it may plainly be inferred that the scantiness of the jury’s verdict reflects a compromise on the issue of liability, a new trial should be ordered generally. (See annotation in 29 A. L. R. 2d, New Trial As To Damages Only, § 10, p. 1214.) The Henderson case is to be differentiated from Rexroad v. Kansas Power & Light Co., supra, where this court found that the jury had fully determined the defendant’s negligence, and that its paltry award did not result from any compromise as to liability.
The distinction between the two cases points up this question: Does the award of damages, considered by the trial court to be inadequate, bespeak a compromise by the jury on the matter of liability? From a review of the entire record, we believe no such deduction can be justified.
Not only is plaintiff’s evidence clear and convincing as to the defendant’s negligence, but the defendant himself does not contradict it. As shown by tibie record, he testified:
“Well, I stopped there on the culvert and waited and I didn’t see anything coming so I swung out. . . .”
This testimony, taken in connection with the uncontroverted evidence that vision was unobstructed for 1600 feet in the direction from which plaintiff’s car was coming, removes any substantial doubt of the defendant’s inattention and lack of care.
In his colloquy delivei-ed at the conclusion of the argument on plaintiff’s motion for new trial, the able trial judge aptly remarked:
“. . . It’s quite clear in this case that the jury found that the defendant was negligent or they wouldn’t have brought in the verdict that they did. And maybe I shouldn’t say this but it’s quite clear to this court from listening to the evidence that the defendant was guilty. I can certainly approve of the verdict as far as it goes on that score. ... I think the liability here is quite clearly established and I can see no reason whatsoever to try this matter, go through a trial again on liability. . . .”
We agree with these observations. No good purpose would be served in this case by relitigating the question of liability.
We conclude the trial court did not abuse its discretion in granting a new trial on damages only, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action filed by plaintiffs (appellants) Dennis E. and Edward J. Callan against W. J. Biermann, defendant (appellee), to recover property damage sustained by reason of the alleged negligence of the defendant. The action was tried before the court without a jury, and judgment was entered for the defendant. Plaintiffs have appealed. The pertinent portion of the record follows.
It is unnecessary to narrate the pleadings. It was stipulated the plaintiffs were co-owners of the automobile in question. Plaintiffs alleged they sustained damage to their automobile by reason of the negligence of the defendant. Defendant alleged that the driver of the plaintiffs’ automobile was guilty of negligence which was thé proximate cause of the accident and damage to their automobile.
The evidence disclosed that plaintiffs were driving their automobile in an easterly direction on a two-lane, blacktop street in Sedgwick county. The defendant, after following plaintiffs’ automobile a short distance, moved to the passing lane. The testimony is in conflict concerning whether or not plaintiffs’ automobile had its left-turn, flashing light on preparatory to making a left turn into a private driveway, and also, as to whether or not as the defendant attempted to pass plaintiffs’ automobile, plaintiffs, without signaling, made a left turn into the private driveway just at or immediately prior to the time of the collision.
Plaintiffs’ testimony disclosed that the driver of their automobile had turned on the left-turn indicator preparatory to making the left turn. The defendant, called as a witness to testify on behalf of the plaintiffs, stated he had observed no taillight or turning signal, and after observing plaintiffs attempting to turn immediately in front of him, applied his brakes and attempted to pass plaintiffs’ automobile on the right side but was unable to do so and struck the rear of plaintiffs’ automobile.
At the close of plaintiffs’ evidence defendant interposed a demurrer, which was argued by the respective parties, at the conclusion of which the trial court sustained the demurrer as to punitive damages and overruled the demurrer as to actual damages. At this juncture the defendant announced he had no evidence to present, and rested his case. There being no further requests or arguments, the court made a general finding in favor of the defendant that the plaintiffs had failed to sustain the burden of proof necessary to entitle them to recover.
Plaintiffs filed their motion for new trial asserting they were not permitted to malee an oral argument after defendant had rested his case, and that the judgment was contrary to the evidence.
As to plaintiffs’ first contention, it is true that each party has the absolute right to have his case argued by counsel before the decision is rendered, whether it be tried to a court or a jury. However, in order to predicate error upon the refusal of the court to allow argument, it must appear that counsel has not waived the right by silence or acquiescence. The record should affirmatively show that permission to argue was refused. The approved practice of deal ing with trial errors is to make timely objection to them as they arise. Fairness to the court should prompt counsel to call attention to such errors seasonably, and he may be held to waive his right to relief where his conduct, expressions or silence shows acquiescence in an erroneous declaration of law or evinces a purpose to take advantage of unguarded expressions that would have been promptly corrected if pointed out. (Boucher v. Roberts, 187 Kan. 675, 678, 359 P. 2d 830; Browning v. Lefevre, 191 Kan. 397, 400, 381 P. 2d 524; Farmers Union Central Cooperative Exchange v. Tomson, 192 Kan. 274, 387 P. 2d 202.)
The record discloses that the respective parties argued the facts as presented by the plaintiffs on the defendant’s demurrer to their evidence, at the close of which the defendant rested without offering any evidence. At this point no specific request by plaintiffs to argue or reargue the facts was made, and the court had but one duty to perform, i. e., weigh the evidence presented and decide the case. This it did. At no time was any objection made to such decision or request for further argument. The question was raised by the plaintiffs for the first time on their motion for new trial. Our conclusion is, with respect to this point, that plaintiffs’ contention is without substantial merit and cannot be sustained.
We do not agree with plaintiffs’ second contention that the judgment was contrary to the evidence. At the outset it may be stated the well-established rule in this jurisdiction is that where a case is tried to the court and a general finding is made in favor of either party and no special findings are requested or made, the general finding determines every controverted question of fact in support of which evidence was introduced, and that a general finding by the court raises a presumption that it found all facts necessary to support the judgment. (Hendrixon v. Schemahorn, 193 Kan. 640, 643, 396 P. 2d 352; Cain v. Grosshans & Petersen, Inc., 192 Kan. 474, 478, 389 P. 2d 839.) Moreover, in considering evidence on appellate review, a verdict or finding made by the trier of the facts and supported by evidence will not be disturbed on appeal, and findings of fact necessarily embraced in the general judgment rendered by the court will not be disturbed if there is some, though controverted, evidence to sustain it. (Hendrixon v. Schemahorn, supra; Nichols Co. v. Meredith, 192 Kan. 648, 652, 391 P. 2d 136; Curry v. Stewart, 189 Kan. 153, 155, 156, 368 P. 2d 297.)
In the instant case plaintiffs, in presenting their case, chose to call defendant as their witness and as a consequence the testimony of the parties was highly conflicting about whose negligence, if any, was the proximate cause of the accident and plaintiffs’ resultant damage. Inherent in the trial court’s judgment was the finding that defendant was guilty of no negligence proximately causing the collision and plaintiffs’ resultant damage.
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The opinion of the court was delivered by
Wertz, J.:
The information in one case alleged that on December 17, 1962, the defendant, Gene Austin Rider, committed a crime of burglary in the nighttime and larceny (K. S. A. 21-520 and 21-524) and the information in the second case alleged that on January 13, 1963, the defendant committed the crime of having in his possession burglary tools (K. S. A. 21-2437). Without objection, the cases were consolidated for trial. The jury returned a verdict of guilty on all charges, and from an order overruling defendant’s motion for a new trial, he appeals.
In his brief the defendant concedes the evidence presented against him on the charges was sufficient to sustain convictions on all counts, and in view of his contentions on appeal he feels it unnecessary to belabor the facts as set forth in the record.
It is defendant’s contention, although absent the alibi notice, as required by K. S. A. 62-1341, the trial court erred in failing to allow him to testify in his own behalf that he was at some other place at the time the offenses charged were committed and that such error on the part of the court resulted in the verdict of guilty aforementioned. The pertinent provisions of the above-mentioned statute read:
“In the trial of any criminal action . . . where the . . . information charges specifically the time and place of the offense alleged to have been committed, and the nature of the offense is such as necessitated the personal presence of the one who committed the offense, and the defendant proposes to offer evidence to the effect that he was at some other place at the time of the offense charged, he shall give notice in writing of that fact to the county attorney. The notice shall state where defendant contends he was at the time of the offense, and shall have endorsed thereon the names of witnesses which he proposes to use in support of such contention.
“. . . The notice shall be served on the county attorney as much as seven days before the action is called for trial, and a copy thereof, with proof of such service, filed with the clerk of the court: . . .
“In the event the time and place of the offense are not specifically stated in the . . . information, on application of defendant that the time and place be definitely stated in order to enable him to offer evidence in support of a contention that he was not present, and upon due notice thereof, the court shall direct the county attorney either to amend the complaint or information by stating the time and place of the offense as accurately as possible, . . . and thereafter defendant shall give the notice above provided if he proposes to offer evidence to the effect that he was at some other place at the time of the offense charged.
“Unless the defendant gives the notice as above provided he shall not be permitted to offer evidence to the effect that he was at some other place at the time of the offense charged. . . .” [Emphasis supplied.]
It is conceded that defendant at no time served any notice upon the county attorney that he intended to offer any evidence to the effect he was at some other place at the time charged in the offenses. In the instant case the defendant chose to take the witness stand and testify as a witness in his own behalf. Defendant was asked by his counsel where he was on the night of the burglary, to which the court sustained the state’s objection. The trial court then asked defendant’s counsel to state the purpose of his question. Defendant’s counsel’s reply was “to trace his activities on that day.” The trial court then stated:
“Well if it’s for the purpose of alibi, then, of course, it’s objectionable, and if that’s the reason, I want to know.
“Mb. Shultz [defense counsel]: Discretionary.
“The Court: [If] it’s for the purpose of alibi, then I won’t admit it. . . . I would like to know what the testimony is, and then I’ll rule upon it. If you will tell me what the testimony is, then I will rule upon it now.
“Mr. Shultz: Well, I think that counsel and the court are incorrect when they say that die defendant is not allowed to testify as to his activity at the given time without regard or not — ”
The trial court again stated that if it was for the purpose of alibi, he would have to reject it on the ground that the statute had not been complied with. It may be stated that the colloquy between the court and counsel was in the absence of the jury.
At no time in the record did defendant or his counsel state to the court he intended to prove an alibi or that defendant was at some other place at the time the offenses were committed, nor did the defendant proffer any testimony, even though the court requested the same, as to what the defendant would testify. However, the court did then permit the defendant to testify that he did not burglarize or rob the place on the night in question and that he had never been in the place where the crime was alleged to have been committed, and that he was never in possession of the burglary tools.
Defendant contends that when he took the stand he remained the defendant and did not become a witness. This question was laid to rest in this state nearly eighty years ago in State v. Pfefferle, 36 Kan. 90, 12 Pac. 406, where it was stated that where a defendant in a criminal case takes the witness stand to testify in his own behalf, he assumes the character of a witness and is entitled to the same privileges, and subject to the same tests, and to be contradicted, discredited or impeached, the same as any other witness. (See, also, State v. Probasco, 46 Kan. 310, 26 Pac. 749; State v. Killion, 95 Kan. 371, 148 Pac. 643; State v. Bowers, 108 Kan. 161, 194 Pac. 650.)
The mentioned statute requires the giving of notice to the state when the defendant “proposes to offer evidence” to the effect that he was at some other place at the time of the offense charged. When the defendant took the stand to testify, he was offering evidence as a witness in his own behalf, and the statute, therefore, must be applied. We have repeatedly stated that compliance with the requirements of the above statute (62-1341) has been held to be a prerequisite to the admissibility of testimony of alibi witnesses. In State v. Trams, 189 Kan. 393, 369 P. 2d 223, we stated that where a defendant in a criminal case in the district court intends to rely upon an alibi as a defense, compliance with the re quirements of G. S. 1949, 62-1341, (K. S. A. 62-1341), is a prerequisite to the admissibility of testimony of alibi witnesses. (See, also, State v. Osburn, 171 Kan. 330, 232 P. 2d 451; State v. Parker, 166 Kan. 707, 711, 712, 204 P. 2d 584, cert. denied, 338 U. S. 860, 94 L. Ed. 527, 70 S. Ct. 102.)
The mentioned statute does not deny the defendant a right to testify in his own behalf to an alibi; it only limits that right or restricts the right to do so until he has complied with the mentioned statute. At common law the defendant in a criminal action was not a competent witness in his own behalf, although he was permitted to make an unsworn statement to the jury at the close of the case. This common-law rule has been changed in nearly every jurisdiction by statutory provisions; by virtue of which the accused is competent as a witness; under modern statutes, while the defendant in a criminal case cannot be compelled to be a witness against himself, he is, if he so desires, entitled to be sworn as a witness, and to testify in his own behalf. (58 Am. Jur., Witnesses, § 173, p. 123; 2 Wigmore on Evidence (3d Ed.), § 579, pp. 701-706.)
Section 10 of the Bill of Rights of the Kansas Constitution provides in all prosecutions, the accused shall be allowed to appear and defend in person, or by counsel; to meet the witness face to face, and to compel attendance of witnesses in his behalf. This provision is a mere statement of the common law and does not make a defendant competent to testify in his own behalf. Our legislature recognized the deficiency that under the common law a defendant was incompetent to testify in his own defense, and in 1872 changed the common law by statute, now appearing as K. S. A. 62-1420, which provides that no person shall be rendered incompetent to testify in criminal causes by reason of his being the person on trial. The. legislature, therefore, having the right to extend the privilege, also had the right to restrict or take away the privilege, and subsequently the legislature restricted this right to testify insofar as it pertained to an alibi unless the defendant gives the notice as provided in K. S. A. 62-1341 aforementioned.
There is another reason why this court may not consider the alleged excluded evidence: at no time during the trial nor on the motion for a new trial did the defendant, either by testimony or affidavit, offer any evidence that he was at some other place at the time the offenses charged were committed. This court has repeatedly stated that where the ground for a motion for a new trial is error in the exclusion of evidence or want of a fair opportunity to produce evidence, such evidence must be produced at the hearing of the motion by affidavit, deposition or oral testimony. If this requirement is not complied with, the question of exclusion of evidence or want of fair opportunity to produce evidence is not open to appellate review. (State v. Trams, 189 Kan. 393, 369 P. 2d 223; City of Topeka v. Burgen, 181 Kan. 71, 309 P. 2d 415; State v. Osburn, supra.)
In the instant case the trial court, in the absence of the jury, requested the defendant to present evidence as to what the defendant’s testimony would be. The court gave the defendant ample opportunity to so produce such evidence, and he failed to do so. The record is void of any evidence as to what the defendant would have testified to, and neither the lower court nor this court can assume that the defendant might have testified that he was at some other place at the time the offenses were committed.
Absent any showing on the part of the defendant as to what his testimony would have been, there is nothing for review. Therefore, the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action brought by Henry Charles Amon, by his father and next friend, Oscar Amon, plaintiff (appellee), to recover damages which resulted from injuries inflicted by Henry Lueck, doing business as Lueck Grain Elevator of Netawaka, defendant (appellant), in the negligent operation of a motor truck. Joined with the defendant Lueck was defendant (appellant) Trinity Universal Insurance Company of Dallas on a policy of insurance covering Lueck as a contract motor carrier pursuant to the statute regulating motor carriers.
Defendant Lueck moved to strike certain portions from the petition with reference to his being a private motor carrier and all reference to his insurance carrier. The defendant insurance carrier demurred to the petition on the ground it failed to state a cause of action against it. From an order overruling the motion to strike and the demurrer, both defendants appeal.
The allegations of the petition pertinent to the issue raised in this court are as follows:
Defendant Henry Lueck (hereinafter referred to as Lueck), in the course of his business operates a grain elevator and owns and operates a two-ton Ford truck with a specially built body for delivering feed and grain, and operates as a motor vehicle private carrier under certificate of convenience and necessity No. 42-207 issued by the Kansas Corporation Commission; that Lueck was engaged in the storage of grain and the hauling and delivering of grain and feed and other farm commodities to farmers for feed for their cattle and livestock; that defendant Trinity Universal Insurance Company of Dallas (hereinafter referred to as the insurance carrier) is the insurer of Lueck, and under the rules and regulations of the Kansas Corporation Commission and the laws of the state was required to file a copy of its insurance policy with the corporation commission; that plaintiff’s father ordered from Lueck a load of dairy feed which consisted of a mixture known as dairy supplement; that defendant Lueck loaded his truck with the supplement and drove to the farm of the plaintiff, parking the truck near the bam, and thereupon connected the chute of the truck to the silo where said dairy supplement was to be unloaded and stored; and that in Lueck’s unloading process, plaintiff Henry Charles Amon was injured due to the alleged negligent action of Lueck.
Defendants conceded the petition sufficiently alleges that Lueck had a private carrier’s permit issued by the Kansas Corporation Commission and had obtained from the insurance carrier the required liability insurance coverage, which policy had-been filed with the Kansas Corporation Commission.
Defendants’ sole question involved on this appeal is whether or not Trinity Universal Insurance Company can properly be named as a party defendant as the insurer of the private carrier Lueck under fhe provisions of the Kansas motor carrier laws when the accident which caused plaintiff’s injury did not happen while the truck was actually being operated within the confines of a public street or highway b.ut while being unloaded by Lueck on plaintiff’s father’s farm.
In light of the provisions of G. S. 1961 Supp., 66-1,128, the question must be answered affirmatively. The mentioned statute provides, in pertinent part:
“No certificate, permit, or license shall be issued by the state corporation commission to any . . . ‘private motor carrier of property,’ until and after such applicant shall have filed with, and the same has been approved by the state corporation commission, a liability insurance policy in some insurance company or association authorized to transact business in this state, in such reasonable sum as the commission may deem necessary to adequately protect the interests of the public with due regard to the number of persons and amount of property involved . . . which liability insurance shall bind the obligors thereunder to pay compensation for injuries to persons and loss of or damage to property resulting from the negligent operation of such carrier. . . .”
We have construed this statute many times, and it would seem the issue has long been laid to rest. The identical question raised by the defendants in the instant case was fully dealt with in the case of Lamb v. Hartford Accident & Indemnity Co., 180 Kan. 157, 166, 167, 300 P. 2d 387, wherein this court held:
“Under our statute (G. S. 1949, 66-1,128) the liability of an insurer who gives a liability insurance policy to enable a public or contract carrier of property or passengers to obtain a certificate or license as such, is a tort liability for the negligent operation of such carrier, and if the petition states a cause of action in tort against the permit holder and alleges the filing and approval of the liability policy pursuant to the statute, it states a cause of action against the insurer.” (Syl. f 2.)
and it was there further held that the fact the truck was parked on private property while being operated pursuant to the certificate of convenience and necessity did not relieve the insurance earner from being made a party defendant nor alter its liability.
As early as Dunn v. Jones (1936), 143 Kan. 218, 53 P. 2d 918, we said that the obligation of such a policy to pay compensation for injury to person and loss of or damage to property, resulting from negligent operation of the motor carrier, rests on the insurer from the time of accident resulting in injury; and that the statute becomes a part of the policy. In Fitzgerald v. Thompson, 167 Kan. 87, 204 P. 2d 756, it was held that under the mentioned statute the Lability. of an insurer who gives a liability insurance policy to enable a private, public or contract carrier of property or passengers to obtain a certificate or license as such, is a tort liability for the negligent operation of such carrier; that the Lability assumed by the insurer is neither a contract liability nor a statutory liability — it is a tort Lability — the Labihty in tort which the insured has “from the neghgent operation” of his business under the permit. We further said that if the petition states a cause of action in tort against the permit holder and alleges the filing and approving of a LabiLtv pohey, it states a cause of action against the insurer. This is the basis for the holdings of the court that one who sustains injury to his person or property by the negligent operation under the permit of tihe permit holder may sue both, the permit holder and the insurer, or either one of them, and the action is in tort, not in contract.
The mentioned cases and others pertinent to the question raised herein were fully discussed in the opinion of Streebin v. Capitol Truck Lines, 182 Kan. 527, 322 P. 2d 776, and the rules of law therein enunciated were reaffirmed by this court in our recent case of Bayless v. Bayless, 193 Kan. 79, 81, 392 P. 2d 132. No useful purpose would be gained in encumbering our decisions by again analyzing all of these cases.
In the instant case the petition alleged that at all times the Lueck truck was owned and operated under the authority and direction of Lueck; that Lueck had made application to and received from the corporation commission a certificate of convenience and necessity and a legal permit by the terms of which he was permitted to and did use the public highways and streets of the state as a private carrier of farm feed and supplement; and that Lueck was at the time of the alleged injury performing his duties in -unloading the truck of supplement to the silo or storage bins on plaintiff’s father’s property. There can be no question but that the petition sufficiently alleged that the accident occurred while the defendant Lueck was engaged in the operation of his business for which the permit was issued, and it is immaterial whether Lueck was operating his truck upon the public street or highway or on private property while engaged in the performance of a service under the permit issued. The statute specifically provides that the liability insurance shall bind the insurer to pay compensation for injuries to persons resulting from the negligent operation of such carrier. It does not say from the negligent operation of the earner while on the highway. Had the legislature intended to make such a limitation, it would have so provided.
In view of what has been said, the judgment of the trial court is affirmed. | [
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|
The opinion of the court was delivered by
Fatzer, J.:
This appeal is from an order of the district court sustaining the defendants’ demurrer to the plaintiff’s amended petition.
The facts alleged in the amended petition are that the plaintiff Peter J. Conboy, Jr., was employed by the defendants on December 5, 1960, as a general laborer to aid and assist the defendants in the maintenance of certain cattle feeding lots owned and operated by them. The plaintiff’s duties in general were to load feed bunks for the cattle from a truck he drove which had an automatic feeder box attached on the truck bed. In performing this operation, the only time it was necessary for the plaintiff to be on the ground was when he raised or lowered the spout of the feeder box at each bunk and occasionally to walk into the feeding lots.
On December 20, 1960, the defendants were preparing a shipment of cattle to be removed from the feeding lots and during this operation the plaintiff was ordered by the defendants to stand in the center of a sorting alley, directing the cattle as they came toward him individually into one pen if they were ready for the market and into another pen if they were not yet ready for the market, under the supervision of John Crofoot. The portion of the feeding lot in which the plaintiff was ordered to stand was extremely wet and muddy due to the snow, sleet and rain which had fallen prior to and on December 19, 1960, but was partially due to the fact that a large number of cattle were being kept within the area of the feeding lots; however, it is characteristic of feeding lots to be a great deal more muddy than surrounding ground.
On the day in question, the plaintiff was wearing ordinary work boots which were sufficient to protect his feet from the elements during the performance of his regular duties. The temperature on the morning of December 20, 1960, was from 21 to 22 degrees, and to carry out the orders and commands of his employer, the plaintiff was forced to stand in mud continuously for a period lasting from two to two and a half hours. The amended petition alleged it was or should have been obvious to the defendants, all of whom were present and on horseback, that the plaintiff was being forced to stand in mud to carry out their orders, but they made no effort to provide him with rubber boots or overshoes of any kind, nor did they provide him an opportunity to leave his position to warm himself. As a result of plaintiff’s exposure, he suffered a severe frostbite to his right foot which necessitated the amputation of the first two toes on his right foot.
At the outset, we deem it proper to note the amended petition did not allege (1) that the defendants in any manner coerced, threatened or persuaded the plaintiff to perform his duties at the time and place in question; (2) that the weather on the morning of die injury was extreme or other than normal for that time of year; (3) that the defendants agreed to provide the plaintiff with clothing or footgear as part of his employment, or that they were requested to provide him with rubber boots or suitable overshoes, or that he was prevented from leaving his duties to secure the same; (4) that the plaintiff protested or informed the defendants that his feet were wet and cold, or that he requested an opportunity to leave his work and go to a place where he mighty warm his feet; (5) that the defendants were aware that plaintiff’s footgear was inadequate or that his feet were cold, and (6) that plaintiff was induced to continue with his duties by any promise of betterment or indemnity if he would continue his work.
The plaintiff predicates his claim upon a common-law duty alleged to be owed by the defendants to him. It is clear, however, that no cause of action for negligence is stated unless it is alleged that there is a duty on the part of one to protect another against injury, a breach of that duty, and that the injury received is the proximate result of that breach. (Rowell v. City of Wichita, 162 Kan. 294, 176 P. 2d 590.) What, then, was the wrongful character of the acts of the defendants? In Blackmore v. Auer, 187 Kan. 434, 357 P. 2d 765, it was said:
“An act is wrongful, or negligent, only if the eye of vigilance, sometimes referred to as the prudent person, perceives the risk of damage. The risk to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. (Palsgraf v. Long Island R. R. Co., 248 N. Y. 339, 162 N. E. 99, 59 A. L. R. 1253; and Seavey, Negligence, Subjective or Objective, 41 Harv. L. Rev. 6.) The existence of negligence in each case must depend upon the particular circumstances which surrounded the parties at the time and place of the occurrence on which the controversy is based.” (1. c. 441.)
Generally speaking, the furnishing of a safe place to work and safe tools and appliances with which to do the work is among the absolute duties of the master; and unless the servant’s attention is drawn to defects or the dangerous condition of the place or the appliances furnished, or he should have known of them, he is not required to make an investigation, but may rest upon the assumption that the master has performed his duties in that respect. (Emporia v. Kowalski, 66 Kan. 64, 71 Pac. 232; Buoy v. Milling Co., 68 Kan. 436, 75 Pac. 466; Fishburn v. International Harvester Co., 157 Kan. 43, 138 P. 2d 471; Concannon, Administrator v. Taylor, 190 Kan. 687, 690, 378 P. 2d 82.)
The place where the plaintiff alleged he was required to perform his duties and about which he complains, was wet and muddy cattle feeding lots. It was those lots which he claims were not a reasonably safe place in which to work. He alleged that he was empoyed “as a general laborer to aid and assist them (the defendants) in the maintenance of cattle feeding lots.” Cattle feeding lots are maintained to feed and fatten cattle for the market, and a part of the process to ready them for the market is to move them into proper pens for shipping. Under the circumstances alleged, it was the plaintiff’s duty as a general laborer to not only feed the cattle but to aid and assist the defendants in whatever was reasonably necessary in getting them from the lots into proper pens for shipping. Moreover, the plaintiff acknowledged that the condition of the defendants’ lots was no different than other cattle feeding lots by his allegation “that it is characteristic of feeding lots to be a great deal more muddy than the surrounding ground.” Hence, when the plaintiff was ordered to stand in the sorting alley to direct the cattle into different pens, he was performing general duties for which he was hired, and they could only be performed in the defendants’ wet and muddy feeding lots. No claim is made that the lots were maintained in a negligent manner, nor is it alleged that the defendants failed to provide the plaintiff with safe tools and equipment. However, the contention that the obligation to provide safe tools and equipment includes the duty to provide the plaintiff with proper clothing and suitable footwear is untenable in the absence of an agreement to do so. The rule is stated in 35 Am. Jur., Master and Servant, § 105, p. 533, that whatever duty devolves upon the master in the latter respect rests only upon a special contract, and no such contract was alleged. See, King v. Interstate Consolidated R. R. Co., 23 R. I. 583; 51 A. U. 301.
We think it must be said that the defendants did not violate any duty owing to thé plaintiff by reason of directing him to perform duties in their feeding lots under the circumstances alleged, and we conclude the plaintiff’s amended petition failed to show that the place provided for him to work was unsafe, except as to the weather. (Prosser on Torts, 3rd Ed., §31, p. 149.) But the defendants had no control over the temperature and it was patently impossible for the plaintiff to perform any of his duties without being exposed to temperatures of 21 to 22 degrees and without placing himself on the ground within the wet, muddy feeding lots.
One of the risks incident to long, continued outdoor employment in the wintertime is that one’s hands and feet will become cold and may be injured by freezing, is so clearly within the rule of assumption of risk on the part of the servant as to require no argument. When a person is capable of and intelligent enough to understand the physical effects of heat and cold upon his body, he assumes the risk for a continuance in service, and cannot recover for the suffering and inconvenience directly due or caused by the exposure to the heat and cold. (Gulf & S. I. R. Co. v. Bryant, 147 Miss. 421, 111 So. 451, 52 A. L. R. 901.)
In Cold Sunday Case, 78 Miss. 140, 28 So. 807, a deck hand on the appellant’s boat was ordered to roll cotton bails on board, which were covered with ice and snow. Three fingers of the appellee’s hand were frostbitten and had to be amputated. The Supreme Court of Mississippi denied recovery, and said:
“. . . The laborer must be presumed to have knowledge equal, if not superior, to his employer of the effect of cold upon his feelings and person. His own temperament is better known to him than any one else, and his own sensations sound the alarm to himself. Men are presumed to have ordinary common sense, until the contrary is shown, and the law does not speculate on degrees of knowledge about weather.” (1. c. 147.)
See, also, Chesnut v. Chicago, B. & Q. R. Co., 284 Ill. App. 317, 1 N. E. 2d 811; L. & N. R. Co. v. Williams, 165 Ky. 386, 176 S. W. 1186, L. R. A. 1915 E 613; Stockwell v. C. & N. W. Ry. Co., 106 Iowa 63, 75 N. W. 665, and King v. Interstate Consolidated R. R. Co., supra.)
In the Chesnut case, supra, the plaintiff alleged that the defendant breached its common-law duty by requiring him to work in such extreme heat and for such a period of time that he suffered a heat stroke. It was held the allegation that the defendant directed the plaintiff to work in the sun and to continue after the usual quitting hour, did not contain any element of negligence, and it was said:
“. . . ‘In occupations involving no extraordinary hazard, in which an employee engages voluntarily, without compulsion or emergency he is conclusively presumed to have assumed such risks as are ordinarily incidental thereto, not due to the employers negligence or violation of law. Chicago, Rock Island and Pacific Railway Co. v. Ward, 252 U. S. 18; Chicago and Northwestern Railway Co. v. Bauer, 241 id. 470.’ Huff. v. Illinois Cent. R. Co., supra. There is no allegation in any of the counts that charges the defendant with having furnished plaintiff defective tools or appliances with which to work. Neither is there an allegation in any of the counts that the place where plaintiff was to perform the work was not suitable and reasonably safe except as to such hazard as might arise from the extreme heat of the weather.” (1. c. 320, 321.)
When the plaintiff accepted employment from the defendants, he knew that he would be required to perform his duties outdoors in cattle feeding lots which would be wet, muddy and cold. Assuming, as we must, that the plaintiff was a person of ordinary intelligence, he knew his own physical condition and his ability to endure the cold. There was a period of time in which the plaintiff was not in danger, presumably the longer he stood in the alley the colder his feet became. While he might not have been able to definitely determine the amount of cold his feet could stand under the prevailing conditions, yet as to that risk he knew better than anyone else how long he ought, for his own safety, to continue to work. That fact was known to the plaintiff alone and he alone could have prevented his injury by informing the defendants of the condition of his feet and requesting that he go warm them or obtain suitable footwear. Whether the plaintiff’s undertaking at that time was usual or unusual, the risk could not have been more obvious.
The plaintiff’s amended petition did not present a question for determination by the jury. Under the circumstances which attend, the question was one for determination by the district court. In Blackmore v. Auer, supra, it was said:
“The assumption of the usual risks of an employment is not ordinarily a jury question. It is a matter of law. It is only where the risk is or may be unusual that a jury question can arise; and even in such cases, if the risk though unusual is obvious, such as an ordinarily prudent man could appreciate and understand, the workman who persists in the employment assumes the risk of it.” (1. c. 444, 445.)
See, also, Lively v. Railway Co., 115 Kan. 784, 225 Pac. 103, and authorities cited therein; Cooper v. Southwestern Bell Telephone Co., 159 Kan. 67, 151 P. 2d 692, and Uhlrig v. Shortt, 194 Kan. 68, 397 P. 2d 321, this day decided.
As here presented, the case is simply one where the defendants ordered the plaintiff to do certain work, leaving him free to adjust his efforts to the prevailing weather and his own physical capacities. The plaintiff was the only one who knew his feet were cold and was the only person who was aware that danger existed. Until that danger became known to the defendants, under the circumstances alleged, there was neither a duty nor an opportunity for them to protect the plaintiff in any manner.
In view of the foregoing, we conclude the district court did not err in sustaining the defendants’ demurrer to the plaintiff’s amended petition and that judgment is affirmed.
It is so ordered. | [
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Hie opinion of the court was delivered by
Parker, C. J.;
Ernest E. Chaplin, a minor seven years of age, by and through Elmer Chaplin as his father and next friend, brought this action to recover damages for injuries alleged to have been sustained as the result of his clothing being ignited by the lighted gas burners of a kitchen stove. A demurrer to the petition was sustained by the trial court and plaintiff perfected this appeal from that ruling.
For all practical purposes, except for differences in the identity of the plaintiff and inconsequential allegations of the petition, including the prayer of that pleading, the issue raised by this appeal is the same as the one involved and determined in Chaplin v. Gas Service Co., 194 Kan. 26, 397 P. 2d 317, this day decided. Therefore, based on what is said and held in that decision, the order and judgment of the trial court in sustaining the demurrer to the instant petition must be affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action by Thompson Transport Company, Inc. (appellant) to recover freight charges for transporting bituminous base (road mix) materials for Middlestates Construction Company. Middlestates had a road construction contract with the State Highway Commission of Kansas. The appellant sued Middle-states and also Trinity Universal Insurance Company (appellee), claiming such transportation charges were covered by the G. S. 1949, 68-410 bond signed by Trinity as surety. The trial court entered judgment for Trinity, and appeal has been duly perfected by Thompson Transport Company, Inc.
The question is whether charges for transporting such road materials are covered by the bond given pursuant to G. S. 1949, 68-410.
The preliminary facts and procedural steps necessary to focus the foregoing issue on appeal are conceded by the parties, and we shall not dwell upon them. The facts necessary for a determination of this appeal have been stipulated by the parties. In pertinent part they provide:
“5. That defendant Middlestates Construction Co. on or about July 6, 1961, entered into a contract with the State Highway Commission of Kansas for the construction of 6.007 miles of roadway with a bituminous base (road mix) in Barton County, Kansas, and identified as Project 4-5 K 5097 ( 2); that a copy of said contract is attached hereto as Stipulation Exhibit No. I, and is incorporated herein as if set out in full; that said contract incorporated and included by reference the 1960 Kansas Standard Specifications, a copy of which is attached hereto as Stipulation Exhibit No. 11 and incorporated herein as if set out in full, . . .
“6. That on the 6th day of July, 1961, defendant Middlestates Construction Co., as principal, and defendant Trinity Universal Insurance Co., as surety, executed a G. S. 1949, 68-410, statutory contract bond, which was approved by and filed with the State Highway Commission of Kansas; and that a copy of said bond is attached hereto as Stipulation Exhibit No. Ill and is incorporated herein as if fully set out.
“7. That defendant Middlestates Construction Co., in the performance of said contract, contracted with the Mobil Oil Company for the purchase of bituminous base (road mix) from the latter’s Augusta, Kansas, refinery, which purchase was F. O. B. the refinery.
“8. Pursuant to request by defendant Middlestates Construction Co., on August 9, 1961, plaintiff began transporting said bituminous base (road mix) from the Mobil Oil Company refinery at Augusta, Kansas, to Barton County, Kansas, where it was stored in tanks at the project site and thereafter used and consumed in the construction of said public highway; and that plaintiff continued transporting said materials until November 27, 1961.
“9. Defendant Middlestates Construction Co. is indebted to plaintiff for transporting said materials in the sum of $9,617.13, for which amount plaintiff has made demand, but defendant Middlestates Construction Co. has failed and neglected to pay the same.
‘TO. That defendant Middlestates Construction Co. was given authority for temporary suspension of work on February 2, 1962, ending on or about March 17, 1962; that thereafter the Highway Commission for the State of Kansas made written demands upon said defendant on March 19 and 30, 1962, to begin work; that the Kansas Highway Commission served demand and notice upon defendant Middlestates Construction Co., under Section A 8-8, of 1960 Standard Specifications; that said defendant refused to resume work; and that the project was assumed by Mr. Charles Hulme on April 7, 1962, who completed the project on April 20,1962.
“11. That subsequent to the defendant Middlestates Construction Company’s refusal to pay plaintiff’s account, plaintiff made demand for payment of the same upon Trinity Universal Insurance Co. as surety under said statutory contract bond; that defendant Trinity Universal Insurance Co. informed plaintiff of its contention that its freight bill toas not covered by said statutory contract bond and refused to pay the same or any part thereof and still refuses to do so.
“12. That on or about the 9th day of April, 1962, plaintiff filed an itemized statement under oath with the State Highway Commission, a copy of which is attached hereto as Exhibit No. IV, and is incorporated herein as if set out in full; that said itemized statement is true and correct.
“13. That in transporting said materials, plaintiff used and consumed labor of its employees, its trucks and gasoline, lubricating oils, fuel oils, greases and similar items necessary to transport bituminous base (road mix) from Augusta, Kansas, to the storage tanks at the project site in Barton County, Kansas; that said account is composed entirely of plaintiff’s charges for transporting said materials to the construction site as hereinbefore alleged whereby they were used in and consumed in the construction and completion of this project.” (Emphasis added.)
Pursuant to stipulation No. 9, wherein Middlestates stipulated to the amount of its indebtedness to the appellant, the trial court entered judgment against Middlestates, and it did not appeal. In its contract with the State Highway Commission Middlestates agreed at its “own proper cost and expense to do all the work, furnish all materials and labor necessary to do the work in accordance with the plans and specifications herein described, and in full compliance with all the terms of this agreement and the requirements of the engineer under it.” (Emphasis added.)
The contract further provided:
“It is also understood and agreed that the advertisement, proposal bond,, specifications and plans hereto attached, or hereinbefore referred to are all essential documents of this contract and are a part thereof(Emphasis added.)
The statutory contract bond entered into by Middlestates, as principal, and Trinity Universal Insurance Company, as surety, firmly bound Middlestates and Trinity unto the State of Kansas in the penal sum of $182,983.82 (the full amount of the road construction contract) to be paid the State Highway Commission of Kansas on the conditions set forth in the bond.
The condition of the bond provides:
“. . . If the Principal shall fully and faithfully perform such contract in every respect and properly and promptly complete the work in accordance with the provisions of said contract, plans and specifications, and any additions to or changes in said contract, . . . and shall pay all indebtedness incurred, whether by said Principal, subcontractor or otherwise, for supplies, material or labor furnished, used or consumed in connection with or in or about the construction of the project for which said contract has been let, including gasoline, lubricating oil, fuel oils, greases, coal and other items used or consumed in carrying out the provisions of said contract, and shall fully indemnify, compensate and pay the said State Highway Commission of Kansas for any and all loss, costs, damages or expense, which it may suffer, or be held responsible for, by reason of any negligence, defective condition, default, failure or miscarriage in the performance of said contract, whether by said Principal, subcontractor or otherwise, then this obligation shall be void, otherwise shall remain in full force and effect.” (Emphasis added.)
The trial court determined tibe matter in favor of the appellee in accordance with the appellee’s theory of the case. The reason for its decision is set forth in the following paragraph of its memorandum decision:
“This plaintiff is excluded from bond coverage because he did not furnish 'supplies, materials or labor under G. S. 1949, 68-410, and the bond here involved executed in accordance with the mandate of that statute. The decisions in Road Supply and Metal Company v. Casualty and Surety Company, 121 Kan. 299, 246 P. 503; Southwestern Electrical Company v. Hughes, 139 Kan. 89, 30 P. 2d 114; American National Bank v. Central Construction Company, 160 Kan. 400, 163 P. 2d 369; and Thomasson v. Kirkpatrick, 174 Kan. 52, 254 P. 2d 329, would indicate transportation is neither supplies, materials nor labor, unless includable because of a unit charge for supplies or materials as delivered.”
Upon entry of judgment by the trial court a motion for a new trial was filed and overruled, and appeal has been duly perfected.
In stipulation No. 5 the parties concede the contract between Middlestates and the State Highway Commission incorporated and included by reference the 1960 Standard Specifications for State Road and Bridge Construction of the State Highway Commission of Kansas. In the lower court a copy of these Standard Specifications was attached to the written stipulations as “Stipulation Exhibit No. II” and incorporated in the stipulations as if set out in full.
In these Standard Specifications under Section A4 the following is set forth:
“Scope of Work
“A4-1 INTENT OF THE PLANS and specifications — The intent of the Plans and these Specifications is to provide for the execution and completion in every detail of the work described herein, and it is understood that the Contractor for all or any part will furnish all labor, material, equipment, tools, transportation, and necessary supplies, such as may be required to execute the Contract in a satisfactory and workmanlike manner and in accordance with the Plans, Specifications, and terms of the Contract.” (p. 30.) (Emphasis added.)
In these Standard Specifications under Section A9 the following is set forth:
“Measurement and Payment
“A9-2 scope of payment — The Contractor shall accept the compensation, as herein provided, in full payment for furnishing all materials, labor, tools, and equipment necessary and for performing all work contemplated and embraced under the Contract; . . . and for completing the work according to the Plans and Specifications.” (Emphasis added.)
The appellee challenges the appellant’s reference to sections A4 and A9-2 of the foregoing 1960 Standard Specifications on the ground that such evidence is not contained in the abstract or counter abstract. The appellant, however, argues this court is entitled to take judicial knowledge of these Standard Specifications.
It is immaterial to determine whether this court is entitled to take judicial notice of these Standard Specifications because the parties in this case have entered into a stipulation and have incorporated them as a part of their written stipulations which were submitted to the lower court.
The trial court in its memorandum decision referred to the language of section A4 of the Standard Specifications of the State Highway Commission of Kansas, Edition 1960, but felt that such section merely concerned the obligation of the contractor, and gave such evidence no further consideration in determining the issue.
Under the circumstances here presented this court, if necessary, could call for the record before the lower court to determine the issue raised on appeal. Here, however, this is unnecessary because the Standard Specifications for State Road and Bridge Construction of the State Highway Commission of Kansas, Edition 1960, are published by the State Highway Commission and are readily available for reference. Their accuracy is not challenged by the appellee in the instant case.
By the terms of the contract between Middlestates and the State Highway Commission the Standard Specifications of the State Highway Commission, Edition 1960, including sections A4 and A9-2, were a part thereof. Thus, Middlestates by its contract was bound to full compliance with all of the terms of the contract, which included an obligation to furnish all transportation and all materials as may be required to execute the contract in accordance with its terms, at its “own proper cost and expense,” for which Middlestates was entitled to accept compensation from the State Highway Commission under its road construction contract.
The appellee states the issue presented on appeal as follows:
“Are freight charges for transporting supplies and materials covered by a G. S. 1949, 68-410, bond conditioned that the contractor -will pay for all ‘supplies, material or labor furnished, used or consumed in connection with or in or about the construction’ of a highway?”
We think the appellee’s statement of the question over-simplifies the issue. The appellee contends that G. S. 1949, 68-410 bonds do not cover freight charges for transporting supplies and materials. Its argument on this point proceeds as follows:
“Prior to 1887, mechanic’s liens could be filed against pubhc improvements. (Sullivan v. School District, 39 Kan. 347, 18 Pac. 287; School District v. Conrad, 17 Kan. 522; Wilson v. School District, 17 Kan. 104.) In that year, the legislature enacted the predecessor to G. S. 1949, 60-1413, and required all pubhc construction, including highway, (Road Supply & Metal Co. v. Casualty & Surety Co., 121 Kan. 299, 246 Pac. 503) to be bonded against claims for such labor, supphes and materials as would substantiate mechanic’s hens and provided that no mechanic’s hens could attach to pubhc improvements. (Laws 1887, Ch. 179, Secs. 1 and 2.)
“In addition, prior to 1933, all highway construction contracts had to be covered by faithful performance bonds. (Laws 1929, Ch. 225, Sec. 1. Laborers and materialmen were not protected by this bond [Cavanaugh v. Globe Indemnity Co., 141 Kan. 774, 44 P. 2d 216].) In that year, the legislature enacted the predecessor to G. S., 68-410. (Laws 1933, Ch. 239.) That enactment consohdated the statute requiring faithful performance bonds and the statute requiring mechanic’s hen bonds into a single statute. Tbe provisions concerning mechanic’s hen bonds were copied from the predecessor to G. S. 1949, 60-1413. (Laws 1931, Ch. 227, Sec. 1, employed the phrase ‘pubhc improvements and buildings,’ while G. S. 1949, 68-410 speaks of ‘projects.’ This difference is immaterial.).
“Decisions construing G. S. 1949, 60-1413, are directly in point in determining the coverage of G. S. 1949, 68-410, bonds.
“Such bonds are a substitute for mechanic’s hens and only cover such labor, supphes and materials as would support a mechanic’s hen. (Road Supply and Metal Co. v. Bechtelheimer, 119 Kan. 560, 240 Pac. 846.) Transportation charges are not henable and are not covered by such statutory bonds. (Transportation charges can be the basis of a mechanic’s hen, and therefore covered by a statutory bond given in heu of hen rights, if they are a part of the single price charged by a materialman for supphes or materials [Thomasson v. Kirkpatrick, 174 Kan. 52, 254 P. 2d 329; Southwestern Electrical Co. v. Hughes, 139 Kan. 89, 30 P. 2d 114; Road Supply & Metal Co. v. Casualty & Surety Co., 121 Kan. 299, 246 Pac. 503].)”
In view of recent decisions it is improper to rely upon the older cases cited by tire appellee in construing separate statutes in accordance with the foregoing argument. Traction Co. v. Brick Co., 112 Kan. 774, 213 Pac. 169, and American Nat’l Bank v. Central Con struction Co., 160 Kan. 400, 163 P. 2d 369, relied on by the appellee, are readily distinguishable.
In Wolfe Tire Corp v. Stanton, 133 Kan. 713, 3 P. 2d 698, the court was confronted with the act of 1925, amending R. S. 1923, 60-1413. Prior to the 1925 enactment the statutory bond (60-1413) only provided for payment of indebtedness incurred for material and labor which entered into and became a part of a public building or a public improvement and remained with it. The amended act enlarged the former one by adding “supplies” to "labor and material furnished,” and also the phrase, “consumed in connection with the construction of the road.” In the opinion the court said:
“There is a further contention that the supplies furnished by the plaintiff were not lienable, in this, that the gas and oil were furnished to subcontractors and that under the mechanic’s-Iien law supplies or labor furnished by one subcontractor to another does not result in a lien which is enforceable. It should be noted that the act is not one providing for mechanics’ liens, but is a substitute remedy for such liens. The action is upon a bond and its terms fix the obligations of those signing it. . . .” (p. 716.) (Emphasis added.)
A recent decision confirming that the obligations of those signing a statutory bond are fixed by the terms of the bond is Leidigh & Havens Lumber Co. v. Bollinger, 193 Kan. 600, 396 P. 2d 320, decided November 7, 1964. There a statutory bond was given by a general contractor pursuant to G. S. 1949, 60-1413 and 60-1414, for the construction of a public building to secure payment for the labor or materials furnished, used or consumed in connection with or in or about the construction of such a building. The contention there advanced was that the lumber company could recover only if it was entitled to an enforceable mechanic’s hen under G. S. 1949, 60-1403, or if its evidence showed a contractual obligation on the part of the general contractor to pay for the materials purchased by the subcontractor from the plaintiff. In holding neither requirement necessary, the court said:
“. . . The surety bond covered die construction of the building, and all labor and materials expended on construction embraced in Bollinger’s contract were furnished by him, whether furnished direcdy or indirectly through Bair, whom he employed. Bollinger’s contract with the state expressly provided that he would ‘furnish all labor, materials, and equipment necessary for the general construction work’ to complete the building. The execution of the surety bond as required by G. S. 1949, 60-1413 shows an intention to comply with the contract and the law. . . .” (p. 602.) (Emphasis added.)
By construing Wolfe Tire Corp. v. Stanton, supra, and Leidigh & Havens Lumber Co. v. Bollinger, supra, together, as applied to the facts in the instant case, the rule is established that the obligations of those signing a statutory contract bond are fixed by the terms of the bond, and if the bond shows an intention to guarantee compliance with the terms of the contract pursuant to which the bond is given, the surety signing the bond becomes the surety for the full performance of all the terms of the contract.
In construing the condition of the statutory contract bond given in the instant case to ascertain the intention of the parties signing it, we do not think it proper to compartmentalize the condition by making reference to separate statutes which preceded the enactment of G. S. 1949, 68-410. In other words, when the principal in the bond with its surety undertake to fully and faithfully perform its contract with the State Highway Commission in every respect and complete the work in accordance with the provisions of the contract, the principal with its surety, in effect, guarantee to pay all indebtedness incurred in carrying out the provisions of the contract, and subsequent provisions in the condition of the bond which follow the language of the statute do not detract from such commitment. Considering the specific language employed in the condition of the bond, we do not think it could be said Middlestates, as principal, and the appellee, as surety, executed a bond which guaranteed something less than full compliance with the provisions of Middlestates’ road construction contract with the State Highway Commission. (See, Shannon v. Abrams, 98 Kan. 26, 157 Pac. 449.)
We hold the execution of the statutory contract bond in the instant case as required by G. S. 1949, 68-410 shows an intention on the part of the obligors who signed the bond to comply fully with the provisions of the contract entered into between Middlestates and the State Highway Commission and to comply with the provisions of the statute. Accordingly the appellee, as surety on the bond, is obligated by the provisions of the statutory contract bond in the instant case to make good for the transportation charges of the appellant. (G. S. 1949, 68-410.)
The appellant contends it is entitled to an allowance of attorney’s fees under G. S. 1961 Supp., 40-256.
While Trinity Universal Insurance Company is merely a surety on the 68-410 bond in this case, G. S. 1949, 40-201 defines an insurance company to include companies writing contracts of indemnity or suretyship upon any type of risk or loss.
The provisions of 40-256, supra, which authorize the allowance of a reasonable attorney fee for the insured in all actions where judgment is rendered against an insurance company, condition such allowance upon the proviso that such company has refused without just cause or excuse to pay in accordance with the terms of its contract.
In our opinion the appellee, Trinity Universal Insurance Company, has refused without just cause or excuse to pay in accordance with the terms of its contract and the appellant is entitled to an allowance of a reasonable attorney fee. (Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 366 P. 2d 219.)
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The opinion of the court was delivered by
Fatzer, J.:
On November 22, 1963, the defendant, Clarence Wolfe, Jr., a/k/a Jerry Wolfe, while serving a sentence in the Kansas State Penitentiary, at Lansing, was charged with the murder of George H. Douglass, an inmate of the penitentiary. Thereafter, the defendant was tried and convicted by a jury in Leavenworth County for murder in the first degree as defined in G. S. 1949, 21-401.
Following the trial, the defendant, by and through his attorney, filed a motion for a new trial which was considered by the district court on March 26, 1964, and overruled. On the same day, the court imposed sentence upon defendant pursuant to the provisions of G. S. 1949, 21-403, and sentenced him to confinement at hard labor at the Kansas State Penitentiary for life. This appeal was then duly perfected.
There are only two material issues presented before this court on appeal. They are: (1) Whether the district court erred in overruling defendant’s motion to dismiss for lack of jurisdiction; (2) whether the district court abused its discretion in allowing testi mony of several witnesses to be read to the jury by the court reporter after the case had been submitted to the jury.
After the state had presented its evidence and rested, defendant moved to dismiss the information on the ground that no evidence had been presented showing the alleged offense was committed in Leavenworth County. Although the information filed in the case charged the offense was committed in Leavenworth County, Kansas, the evidence introduced by the state only went so far as to show the offense occurred within the Kansas State Prison. The defendant does not contend it would have been improper for the district court to have taken judicial notice of the location of the Kansas State Prison; however, he does contend the court did not in fact take such notice, and for that reason the motion to dismiss should have been sustained.
The district court, after hearing argument of counsel on the motion to dismiss, including the right of the court to take judicial notice of facts necessary to establish jurisdiction, stated:
“. . . And it is my feeling that the question we have here would fall within the provisions of Section 60-409 (a), that being ‘Judicial notice shall be taken without request by a party of . . . such specific facts and propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute.’
“I think probably that’s the question we have here.”
Furthermore, the court, in ruling on defendant’s motion for a new trial, and particularly that portion of the motion directed toward the judicial notice question, stated:
“As I recall, there was no real dispute as to whether the Court could or could not take judicial notice. The question was whether or not the Court did so. It is my recollection that there was no specific statement made by the Court that the Court was taking judicial notice, but the motion to dismiss the information was overruled, and I have concluded that in a situation such as that it isn’t necessary for the State to ask the Court to reopen the case for the purpose of asking the Court to take judicial notice. It simply appears to be a question of procedure. It appears further that this is one of those matters that does involve a mental process, and after reflecting on it I have concluded that sufficient notice that the Court was taking judicial notice was given by the ruling on the motion. . . .”
It is unnecessary to decide whether the district court properly indicated it was taking judicial notice. This court is authorized under K. S. A. 60-412 (c) to take judicial notice of any matter specified in K. S. A. 60-409, whether or not judicially noticed by the court below. A consideration of the reasons underlying the matter of judicial notice and its fundamental principles leaves little doubt as to its applicability here. The location of the Kansas State Penitentiary is a matter of everyday common information and experience, and one about which there can be no dispute. This court will take judicial notice that the Kansas State Penitentiary is located in Leavenworth County. See State v. Booker, 114 Kan. 438, 219 Pac. 255; State v. Ragland, 173 Kan. 265, 273, 246 P. 2d 276. Defendant’s contention that the state’s proof failed to show the crime was committed in Leavenworth County cannot be sustained.
The defendant also contends the court abused its discretion in allowing the testimony of seven witnesses to be read when the jury had originally requested the testimony of only two witnesses. The decision as to the request for the reading of additional testimony was made in the courtroom when the foreman was allowed to ask individual members of the jury what additional testimony, if any, they wanted read. The court granted five separate requests for additional testimony.
In this connection, the record discloses that no objection was made to the reading of the testimony by the court reporter at the time of the trial. Strictly speaking, therefore, defendant is not in a position to complain at this time. The approved practice of dealing with trial errors is to make timely objection to them as they arise. The purpose of objection is to call the attention of the trial court to errors being committed, so the court, as well as the opposing party, will be advised and have an opportunity to correct them. Counsel’s silence may well be deemed a waiver of the right to raise the errors on appeal. (State v. Pyle, 143 Kan. 772, 57 P. 2d 93; Boucher v. Roberts, 187 Kan. 675, 359 P. 2d 830.)
Notwithstanding defendant’s failure to object, this court has previously held it is not improper.for the district court to allow the official court reporter to read in open court testimony of certain witnesses to refresh the memory of the jury. (State v. Logue, 115 Kan. 391, 223 Pac. 482; City of Lyons v. Poindexter, 186 Kan. 521, 350 P. 2d 787; and in civil cases Cannon v. Griffith, 3 Kan. App. 506, 43 Pac. 829; Phillips v. Carlson, 178 Kan. 206, 284 P. 2d 604.) This question is discussed in an exhaustive annotation at 50 A. L. R. 2d, 176-216. In State v. Logue, supra, it was said:
“. . . The safeguards thrown around the reporter and tire evidence which he has taken would, it would seem, furnish the most accurate means of reproducing evidence had upon the trial. Parties seeking to reproduce evidence could rely upon its accuracy more readily than on the witness’ memory of his exact statement. The defendant does not complain of any inaccuracy in the testimony, as read. No objection was made at the time the evidence was read to the jury. If testimony can be reproduced by a sworn officer of the court, especially, where there is no complaint of inaccuracy or partiality, there appears no sound reason why, under our liberal procedure, the case should, on that account, be reversed.” (1. c. 393.)
The trial court must have discretion in determining how to best resolve the confusion or misapprehension of facts in the minds of the jury. Whether there are reasonable grounds for the jury’s request for the evidence, whether the transcript made contains matter which ought not to be submitted to the jury, or of doubtful accuracy, whether certain parts of the testimony may be read without too great an inconvenience or loss of time in the trial of the case, and in such manner as will, with fairness to all parties, furnish the desired information to the jury, are all questions for determination of the trial judge. This discretion is an incident to the mode and manner of trial, and in the absence of flagrant abuse, should not be disturbed on appeal.
In the instant case no claim is made that in the reporter’s reproduction of the testimony there was any inaccuracy or departure from the testimony of the witnesses given upon the stand. Moreover, it is not pointed out to us by the defendant wherein the jury was misled or confused by the action of the district court to his prejudice. This court has carefully examined the record, and we are of the opinion the district court committed no fundamental or prejudicial error in permitting such testimony to be read to the jury after its deliberation had begun.
Defendant’s contention that the district court erred in admitting into evidence state’s exhibits 1 through 6, drawings or sketches of cell house A of the Kansas State Penitentiary, and further erred in admitting into evidence state’s exhibit 7, a three-quarter-inch piece of pipe, over defendant’s objection, is without merit. The record discloses that evidence was introduced to identify the exhibits, and to lay a foundation for their admission. The district court was well within its discretionary power to accept such evidence at the trial.
We have thoroughly reviewed the record and find no reversible error. The judgment is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
This case stems from the death of the plaintiff’s eighteen-month old son, Ivan Wayne Corman, Jr., who was run over by a truck owned by the defendant, WEG Dial Telephone, Inc., as the same was being backed from the Corman driveway by the company’s driver, the defendant, Robert L. Feihler.
Suit was filed by the father, Ivan Wayne Corman, in his capacity as administrator of his son s- estate, seeking to recover $595.90, for expenses incurred, and $25,000.00 damages for wrongful death of the child. The case was tried to a jury which, after finding the defendants guilty of negligence, returned a verdict in favor of the plaintiff for $1,500.00 The trial court overruled plaintiff’s motion for a new trial and entered judgment upon the verdict. From that judgment, the plaintiff has appealed.
The principal contention advanced by the plaintiff in this appeal, and the one we consider of gravest import, is that the verdict was so grossly inadequate as to require a new trial.
Since tire case of Sundgren v. Stevens, 86 Kan. 154, 119 Pac. 322, 39 L. R. A. (NS) 487, (1911), this court has been committed to the general proposition that when a verdict is so inadequate as to indicate partiality, passion or prejudice, it should be set aside.
In a very recent decision, Henderson v. Kansas Power & Light Co., 188 Kan. 283, 362 P. 2d 60, we reiterated our adherence to that principle and said:
“The general rule is, in the absence of a statute to tire contrary, that inadequacy of damages constitutes a ground for the granting of a new trial when a verdict is so inadequate as to indicate passion and prejudice. . . .” (p. 290.)
We pointed out, in Henderson, certain well recognized and basic rules to be observed in considering, on appellate review, questions concerning the adequacy of damage awards. Eecause those rules were so plainly and succinctly stated in the Henderson case, we feel there is no need to repeat them here.
Although questions relating to inadequate verdicts have on several occasions been presented to and ruled on by this court, we are aware of no case from this jurisdiction which has involved the precise problem presented here. We have been cited to a few infrequent cases from other jurisdictions in which damages awarded for the death of children have, on appeal, been held inadequate. Plaintiff has also set out in his brief a number of cases from Kansas and other states where verdicts involving the death of children have been upheld as not being excessive.
However, the adequacy of the plaintiff’s recovery in this case cannot be determined by striking an average of amounts which juries may have allowed in other cases, either in Kansas or elsewhere. We are not at liberty to adopt a quotient rule. Each case in which the adequacy, or inadequacy, of a verdict is called in ques tion must be determined on the basis of its own facts. Amounts allowed in other cases can be illuminating only as they may tend to indicate the bounds beyond which a sound public conscience will permit no trespass. In Aaron v. Telephone Co., 89 Kan. 186, 131 Pac. 582, this court said:
“. . . In determining what allowance should be deemed excessive little aid is to be had from the adjudications, for each case turns upon its peculiar facts. ... A mere comparison of the amount of the judgment with that sustained or set aside in other cases is obviously of little value, especially with respect to decisions in other jurisdictions, where the measure of recovery is different. . . .” (p. 195.)
It is not possible for any one of us to equate a human life with coin or currency. Under moral concepts which are basic to our kind of society, human life is beyond value. Only the Creator of life may judge the intrinsic worth of a man, or of a child. This court has said on more than one occasion that suffering is without known dimensions and that no exact relationship exists between physical pain or mental anguish and money. (Domann v. Pence, 183 Kan. 135, 325 P. 2d 321; Neely v. St. Francis Hospital & School of Nursing, 188 Kan. 546, 363 P. 2d 438.)
In Henderson v. National Mutual Cas. Co., 168 Kan. 674, 215 P. 2d 225, the court said:
“. . . Many verdicts have ‘shocked the conscience’ of this court so that a remittitur or reversal has been ordered, but there is no uniform yardstick or hard and fast rule by which the alleged excessiveness of a verdict can be measured. . . .” (p.683.)
The same thing, of course, may be said concerning the inadequacy of a verdict.
It was recognized quite early in the life of this state that parents have a pecuniary interest in the lives of their children and are entitled to be compensated for the pecuniary loss which they might sustain in the event of their deaths. (A. T. & S. F. Rld. Co. v. Brown, Admr., 26 Kan. 443.) Under early statutes, financial loss was the sole and only element of damage for which recovery might be had in the loss of either a minor or an adult child.
This specific element of loss encompassed more than loss of the child’s earnings during its minority; it included also the probability of financial assistance after maturity which would normally flow from the natural feelings of affection, gratitude and loyalty existing between parent and child. In Railroad Co. v. Cross, 58 Kan. 424, 49 Pac. 599, it was held:
“In an action brought by parents against a railroad company to recover damages for negligently causing the death of their minor son, the jury are not necessarily restricted to an allowance of the value of the son’s services during minority, but may take into consideration pecuniary benefits which the parents may reasonably be expected to receive from him after reaching his majority.” (Syl. ¶ 3.)
Prior to 1949 only the pecuniary loss occasioned to parents by the death of their children could be taken into account in assessing then damages. In that year, however, the legislature amended the then existing wrongful death statute and added the following provision (Laws 1947, ch. 319):
“. . . Damages may be recovered hereunder for, but not limited to: (a) Mental anguish, suffering or bereavement; (b) loss of society, companionship, comfort or protection; (c) loss of marital care, attention, advice, or counsel; (d) loss of filial care or attention; and (e) loss of parental care, training, guidance or education.”
Identical provisions were contained in G. S. 1961 Supp., 60-3203, and are now set forth in K. S. A. 60-1904.
In commenting on the 1947 amendment, this court, in Kurdziel v. Van Es, 180 Kan. 627, 306 P. 2d 159, had this to say:
“. . . Prior to that enactment, the measure of damages in such an action was the pecuniary loss sustained by plaintiffs. By the mentioned act, the legislature provided that other considerations than pecuniary loss should be considered. . . .” (p. 632.)
Thus, today, in passing upon the adequacy of an award to a parent for the death of his child, not only must pecuniary loss be taken into account, but consideration must be given also to those intangibles of grief, anguish, suffering, etc., listed in the present act. While these elements of damage are nebulous and impossible to equate satisfactorily with money, they nonetheless are very real and onerous to a bereaved parent, often far outweighing in severity and permanent effect the pecuniary loss involved. Particularly would this be true where the child was a beloved member of the family, as is indicated by the record here.
We entertain no doubt that the jury’s verdict of $1,500.00 is inadequate. The undisputed medical, hospital and burial expenses in themselves amounted to $595.90, leaving but a paltry sum to represent the value of a human life. This court has said that in the death of a minor who lives with his parents, there is an implication of pecuniary loss. (Railway Co. v. Fajardo, 74 Kan. 314, 86 Pac. 301.) To similar effect, we stated in Brick Co. v. Fisher, 79 Kan. 576, 100
Pac. 507:
. . It is not only reasonable to suppose but it is quite certain that these parents would have been pecuniarily advantaged by the continued life of their son . . .’’ (pp. 582, 583.)
We believe that an implication of loss due to bereavement and mental anguish inheres in the violent and untimely death of a child just as surely, if not more certainly, than financial impairment. The evidence shows Ivan Wayne Corman, Jr., to have been a healthy child with a life expectancy of 68.31 years. That he was held in great affection by his parents is evident from the testimony. Conceding that no monetary price tag can aptly measure the worth of the gift of life, and that cold cash can never fill the aching void left by death, we nonetheless are forced to conclude that $900.00 is absurdly insufficient recompense for the loss these parents sustained.
May it be said that the verdict is so grossly inadequate as to shock the conscience or to indicate passion and prejudice on the jury’s part? Refore venturing a definite answer to the query, we must point out another factor which we believe to be significant.
There is more than a suspicion that the verdict returned by the jury in this case was based on compromise. The following remarks made by the trial judge, in overruling plaintiff’s motion for new trial, are enlightening in this regard:
“It is my personal opinion that they had some difficulty about finding liability at all on the part of this defendant, and that the amount of the verdict may have been influenced by their thought about the question of liability. The other thing that leads me to believe they may have had difficulty there or fixing liability or negligence on the part of the defendant, was that the jurors asked to have the testimony of two of the principal witnesses read back to them. That pertained only to the question of what happened there or what transpired there. It didn’t pertain to the elements that go into making up the damages. I think the amount of the verdict, there may have been some other juror who thought for a time or about the time there was no liability at all.”
These comments, coming from an astute and discerning trial judge of long and honorable experience, cast doubt upon the manner in which the verdict was reached and, in our judgment, are entitled to great respect in determining whether the verdict is just. We feel bound to conclude, under the circumstances of this case, that, in a legal sense, passion and prejudice are inherent in the verdict because of its gross insufficiency and the method by which we may infer it was reached.
As we stated in Henderson v. Kansas Tower & Light Co., supra, this court is fully aware that the assessment of damages in an action o£ this nature is ordinarily a matter for the jury to determine and that courts must exercise great restraint in granting new trials based on the inadequacies of verdicts. Nevertheless, we are constrained to hold, from the record before us, that a new trial will serve the ends of justice.
The plaintiff urges that we grant a new trial on the issue of damages only. Although we recognize that negligence and damages are legally distinct and separable issues, and that it lies within the judicial prerogative to grant new trials on damages alone, we believe the circumstances here do not justify such action. In our opinion, the rule which should apply to the present situation is stated in the annotation found in 29 A. L. R. 2d, New Trial As To Damages Only, § 10, p. 1214, where it is said:
“A new trial as to damages alone should not be granted where there is ground for a strong suspicion that the jury awarded inadequate damages to the plaintiff as a result of a compromise involving the question of liability. Or, as is said in 98 ALR 944, if from the inadequacy of the damages awarded, in view of the evidence on the subject, or the conflict of the evidence upon the question of liability, or from other circumstances, the plain inference may be drawn that the verdict is the result of a compromise, such error taints the entire verdict, and a new trial should be ordered upon all issues.”
In view of our holding announced above, it becomes unnecessary to pass upon other errors alleged by the plaintiff. We are confident that the able trial judge, before whom this action was tried, will insure an impartial trial to all of the litigants, in accordance with established rules of evidence and recognized standards of fairness.
The judgment of the court below is reversed with directions to grant a new trial. | [
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The opinion of the court was delivered by
Fatzer, J.:
The appellants are motor common carriers of property for the transportation of a full line of oil field equipment, materials and supplies, between all points and places in Kansas over irregular routes, holding certificates of convenience and necessity from the State Corporation Commission. They seek review of the order of the district court sustaining the order of the commission granting a contract-carrier permit pursuant to G. S. 1961 Supp., 66-1,115, to the Intervenor, Thunderbird Drilling, Inc., for transportation of like property between points and places in Kansas under contract with Mayfield-Smith Drilling, Inc., of Wichita.
The proceeding out of which this appeal arises was commenced when Thunderbird filed its application with the commission for a contract-carrier permit, which was set for hearing on January 11, 1962. Notice of the hearing was issued to all interested parties on December 28, 1961, pursuant to G. S. 1949, 66-1,114. On January 5, 1962, the appellants filed a motion for continuance which was allowed by the commission, and the hearing was continued until February 8, 1962. Thereafter, the appellants filed written protests to the granting of the contract carrier permit and served a copy upon the applicant and its counsel of record.
In the meantime, Thunderbird had entered into a contract with Mayfield-Smith to move its oil field rig and related equipment on January 30, 1962, to a new location. In view of the continuance of its application for contract carrier authority, Thunderbird filed an application for a temporary contract-carrier permit to operate as a contract carrier pending the determination of its application for permanent authority. Thunderbird’s request for an emergency hearing recited in part:
. . the contracting party with applicant, to-wit: Mayfield-Smith Drilling, Inc. have previously planned to have applicant move their drilling rig on or about Tuesday, January 30, 1962, and any delay in making said move would constitute a serious economic hardship to them and the use of any other carrier would be unauthorized under the terms of the contract which has previously been filed in this case.”
The commission granted Thunderbird’s request for temporary authority at an ex parte hearing, which authority expired March 31, 1962.
On March 29,1962, a hearing was held on Thunderbird’s application for permanent authority to operate as a contract carrier in Kansas, and on May 9, 1962, the commission issued its order granting that authority.
The appellants filed an application for rehearing pursuant to G. S. 1949, 66-118b, which was allowed, and a rehearing was held by the commission on July 5, 1962. On November 8, 1962, the commission reaffirmed its earlier order of May 9, 1962, granting Thunderbird a permit to operate as a contract carrier.
Thereafter, and on December 20, 1962, the appellants filed their application in the district court of Shawnee County for judicial review of the commission’s order granting Thunderbird permanent authority. A complete transcript of the documents on file with the commission and the evidence heard at tire hearing and rehearing was filed in the district court. The parties filed extensive briefs, and after lengthy oral argument, the district court found the commission’s order was lawful and reasonable and entered its judgment sustaining the validity of the order. This appeal followed.
The pertinent facts developed at the hearings before the commission are summarized: Since about 1953 or 1954, Thunderbird, an independent drilling contractor, owned and operated two oil drilling rigs, one truck, and certain oil and gas drilling and producing equipment. It drilled approximately 30 to 35 wells per year per rig. After a drilling rig completes a drilling assignment, it is necessary to move the rig to the next drilling location. In the past, Thunderbird accomplished that task by utilizing its own truck to haul a portion of the dismantled drilling equipment and hired common carriers to transport the remaining equipment. The evidence showed that Thunderbird’s truck handled about 25 percent of the move and common carriers handled the other 75 percent.
In October, 1961, the stockholders of Thunderbird, C. W. Aikins and J. W. Owen and their wives, determined it would be useful for legal and economic reasons, to divided their operations into two corporations. Accordingly, they requested C. R. Mayfield and Edgar Smith to join them in the formation of a second corporation to be called Mayfield-Smith Drilling, Inc. Thunderbird contributed one of its two rigs for one-third of the stock in Mayfield-Smith and Mayfield and Smith contributed cash for operational capital. The evidence further showed that the two legal entities, Thunderbird and Mayfield-Smith, needed some method of using Thunderbird’s one available truck in connection with the moving of their two rigs, since “it’s not economically feasible to run one truck with only one rig.” Being the legal owner of the one truck, Thunderbird could continue to transport its remaining rig under its private carrier permit; however, to transport Mayfield-Smith’s rig, Thunderbird needed contract carrier authority. Accordingly, Thunderbird filed its application for a contract-carrier permit to haul Mayfield-Smith’s drilling equipment. There was evidence at the hearing for permanent authority that Thunderbird would continue to haul 25 percent of Mayfield-Smith’s equipment and that common carriers would continue to haul the remaining 75 percent.
The specific portion of the commission’s order of May 9, 1962, granting Thunderbird permanent authority, here attacked by the appellants, reads:
“The Commission, further finds that the applicant will be able to perform an individualized, specialized motor contract carrier service different from, and more suitable to the needs of the shippers than any common carrier service now available.”
Under Class I Rail Carriers v. State Corporation Commission, 191 Kan. 201, 380 P. 2d 396, the commission’s finding that the specialized type of service rendered by Thunderbird was more suitable to meet the needs of the shippers than any common-carrier service now available, was equivalent to a finding that existing common carrier service was inadequate.
The appellants forcefully argue there was no substantial, competent evidence to sustain the commission’s order granting Thunderbird permanent contract carrier authority. In presenting this question there is no disagreement between the parties concerning the applicable law. Upon judicial review of orders of the commission the principal function of the reviewing court is twofold: (1) To determine whether the commission’s orders are lawful, and (2) to determine whether the orders are reasonable and contain adequate findings supported by substantial and competent evidence. While the appellants attack the commission’s order as being unlawful, in view of conclusions hereafter announced, it is unnecessary to discuss this feature of the appeal, and we now turn our consideration to whether the record contains substantial evidence to support the commissions order granting Thunderbird permanent authority to operate as a contract carrier for Mayfield-Smith.
Charles W. Aikins, president of Thunderbird, testified at the rehearing on July 5,1962, as follows:
“Q. Is it your position that the existing common carrier service is inadequate for your purposes?
“A. No. Our existing permit that we have is what we have requested1.
“Q. No, I am referring to common carrier authority, excluding the contract carrier certificate. Is it your position that the existing common carriers are insufficient or inadequate for your particular needs?
“A. No. That isn’t the situation. The reason for the application was that we could use the truck for the two companies and that it wasn’t economically feasible to run our truck just for the one company.”
Mr. Edgar E. Smith, one of the owners of Mayfield-Smith, testified as follows:
“Q. Were the services of common carriers utilized?
“A. Yes.
“Q. Do you recall which carriers?
“A. No.
“Q. Did you have any complaints about the common carrier service that was rendered to you?
“A. No.
“Q. Was it highly satisfactory?
“A. Yes.
“Q. Mr. Smith, is the common carrier service to you inadequate?
“A. No.
“Q. They [Thunderbird] don’t use any special equipment that is not available from common carriers?
“A. No.
“Q. What is the advantage to you that is derived from that system as opposed to using the services of a common carrier one hundred percent?
“A. The advantage would be Thunderbird would probably be more available than any carrier.
“Q. Have you ever used one hundred percent common carrier service?
“A. Yes.
“Q. What difference do you find in using one hundred percent common carrier and using twenty-five percent from this contract carrier and seventy-five percent from the common carrier?
“A. I wouldn’t say there was any difference, because they both have the same equipment practically.
“Q. Do you find that the twenty-five percent that is moved by the contract carrier gets to its destination before the other?
“A. No.
“Q. What advantage is there to you in the fact that part of this load is moved by a contract carrier?
“A. Do you mean Thunderbird?
“Q. By Thunderbird'.
“A. There wouldn’t be any particular advantage that I can see.
“Q. The real reason why you use Thunderbird is because they own part of your stock, is that correct?
“A. Right.
“Q. And that is the reason for your support of this application, because they own part of your stock?
“A. Right.
“Q. If it were not for the fact that Thunderbird owns a portion of your stock, would you have any reason to support this application?
“A. No, I would say I wouldn’t.”
The statutory scheme of the Motor Carrier Act places the burden upon the applicant to prove that there does not exist sufficient common-carrier service to adequately meet the public needs and that discrimination and unfair competition prohibited by Section 66-1,112e are not present. The Motor Carrier Act was interpreted by this court in dealing with a contract-carrier matter, and in Baldwin v. State Corporation Comm., 143 Kan. 580, 56 P. 2d 453, it was said:
“It clearly appears one of the main purposes of the act is to protect common carriers by rail and common carriers by motor vehicle alike in territory where there exists sufficient common-carrier service to adequately meet the public needs.” (1. c. 585.)
It is well settled in this state that an administrative agency such as the commission must make findings that support its decision and those findings must be supported by substantial evidence. (Class I Rail Carriers v. State Corporation Commission, supra, p. 208.)
While there was evidence that the granting of Thunderbird’s permanent authority would not tend to divert any business from existing common-carrier service based upon its operational status prior to the incorporation of Mayfield-Smith, that is, Thunderbird would haul 25 percent of the drilling rig and the remaining 75 percent would be hauled by common carrier, the incorporation of Mayfield-Smith changed the status of the property contributed to Mayfield-Smith and it was incumbent upon Thunderbird to prove that existing common-carrier motor service was then unavailable and inadequate. We think Thunderbird failed in its burden of proof. From the time of the emergency hearing until the final proceeding before the commission there was no evidence presented of any fault or inadequacy of motor common-carrier service. The record discloses that the appellants were providing satisfactory service and that Mayfield-Smith never considered the service to be inadequate. The real reason for Thunderbird’s application was for its own economic advantage and not because of inadequate service of motor common carriers. Moreover, there was no evidence to support the finding that Thunderbird was able to perform an individualized, specialized motor carrier service more suitable to the needs of the shippers than existing common-carrier service. In fact, the evidence was undisputed that both had the same equipment and Thunderbird did not use any special equipment that was not available to the common carriers. At most, Thunderbird’s application and Mayfield-Smith’s support of it was because both were common stockholders and common officers in the two corporations. Roth testified that the common-carrier service was adequate to meet Mayfield-Smith’s needs, and the president of Thunderbird concluded his testimony with the statement that the reason for the application was that the mutual stockholders could use the truck for the two companies because it was not economically feasible to run the one truck for Thunderbird alone. The secretary-treasurer of Mayfield-Smith concluded his testimony with the statement that if it were not for the fact that Thunderbird owned a portion of Mayfield-Smith, he would not have any reason to support Thunderbird’s application.
We conclude that the district court erred in finding the commission’s order to be reasonable in view of the fact that the undisputed evidence does not support the granting of the contract carrier permit to the applicant.
In view of the foregoing, the judgment of the district court is reversed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a criminal action in which the defendant pleaded guilty to six counts of first degree robbery (G. S. 1949, 21-527, now K. S. A. 21-527) in one case, and a count of escaping custody (G. S. 1949, 21-736, now K. S. A. 21-736) in another case. The cases were heard together below and an appeal has been taken by the defendant from the judgment and sentence of the trial court in both cases.
The appellant states the questions to be as follows:
“(1.) Must a court inquire of the defendant, pursuant to G. S. 1949, 62- 1510 [now K. S. A. 62-1510], if he has legal reason why sentence should not be pronounced before pronouncing judgment?
“(2.) May the court impose habitual criminal penalties on the basis of out-of-state convictions which show on their face that the defendant was not afforded counsel at any stage of the proceedings?”
John Oscar Engberg, appellant, was charged by information in the district court of Sedgwick County, Kansas, with six counts of first degree robbery. Before he was arraigned in the district court on these charges another information was filed in the district court of Sedgwick County, Kansas, charging him with escaping jail before conviction and with felonious assault. (G. S. 1949, 21-434, now K. S. A. 21-434.) The felonious assault charge was dismissed by the state and is not involved in this appeal.
On September 16, 1963, at the call of the criminal docket the defendant was present in the lower court with counsel, at which time he requested a jury trial, waived formal arraignment, and entered a plea of not guilty. The state then informed him of its intention to invoke the habitual criminal act. Again on October 7,1963, the defendant and his counsel were present in court and he was informed of the state’s intention to invoke the habitual criminal act — that it would offer evidence to show two prior felony convictions.
- Before calling upon the appellant to plead on the 10th day of October, 1963, the record discloses the trial court elicited from the appellant that he had three or four previous convictions. The appellant then entered a plea of guilty to six counts of robbery in the first degree and to one count of escaping custody before conviction. The court immediately sentenced the appellant on all counts .to twenty-five years in the Kansas State Penitentiary under the habitual criminal act. (G. S. 1949, 21-107a, now K. S. A. 21-107a.)
Although the journal entries indicate full compliance with the provisions of G. S. 1949, 62-1510 (now K. S. A. 62-1510), the appellant contends, based upon his interpretation of the record, that the trial court at no time gave him an allocution or asked him or his attorney if either had anything to say before sentence was pronounced.
After the sentence was pronounced by the trial court, the state “for the record” introduced evidence that the appellant had previously been convicted of three felonies in the state of Colorado. This evidence consisted of a written document entitled “Mittimus” for each of the three prior Colorado convictions. The mittimus in two of those cases does not recite that the appellant was represented by counsel in the Colorado proceeding. The other Colorado conviction shows that the appellant had counsel, and the appellant therefore contends it is not pertinent to this appeal.
It is the appellant’s contention in this appeal that (1) the statutes of Kansas guarantee him the right to speak before sentence is pronounced; and (2) the sentence given by the court is illegal since it is based on the appellant’s having three prior felony convictions, when the evidence before the court shows only one prior conviction which is not void for patent constitutional infirmity.
On the record presented, the court will not undertake to decide whether the appellant was given an allocution (the formal address of the judge to the prisoner, asking him why sentence should not be pronounced) in accordance with the requirements of K. S. A. 62-1510. Assuming, without deciding, that no allocution was given, is it imperative that the sentence in this case be set aside and the appellant remanded for proper sentencing?
G. S. 1949, 62-1510 (now K. S. A. 62-1510) provides:
“When the defendant appears for judgment, he must be informed by the court of the verdict of the jury, and ask whether he have any legal cause to show why judgment should not be pronounced against him.”
G. S. 1949, 62-1511 (now K. S. A. 62-1511) follows the foregoing section of the statute and provides:
“If no sufficient cause be alleged or appear to the court why judgment should not be pronounced, it shall thereupon be rendered.”
These statutes have formed a part of the law of criminal procedure in Kansas since 1868.
The appellant cites Van Hook v. United States, 365 U. S. 609, 5 L. Ed. 2d 821, 81 S. Ct. 823 (1961), where the federal statute regarding allocution was ignored, and the United States Supreme Court remanded the case for resentencing. (Rut see, Hill v. United States, 368 U. S. 424, 7 L. Ed. 2d 417, 82 S. Ct. 468 [1962].) The history of the allocution rule was traced in Green v. United States, 365 U. S. 301, 5 L. Ed. 2d 670, 81 S. Ct. 653 (1961). The appellant argues that no reason appears why our statute should not be given the same attention by our courts as the federal courts are required' to give to the federal rule.
The allocution rule is based on the common law of England where as early as 1689 it was recognized that the court’s failure to ask the defendant if he had anything to say before sentence was imposed required reversal. (See Anonymous, 3 Mod. 265, 266, 87 Eng. Rep. 175 [K. B.]; and Green v. United States, supra.)
In 15 Am. Jur., Criminal Law, § 457, it is stated:
“In the light of modem tendency to treat the allocution as a mere formality, there is no question that it can be waived by the defendant, and this is done where counsel is present and no request to be heard is made and no objection is interposed to being sentenced without being heard. The ancient practice was for the court to ask the prisoner if he had anything to say why sentence should not be passed. It originated at a time when prisoners were not allowed the benefit of counsel, and where the court was counsel for the prisoner so far as to see that he was deprived of no legal right. . . (p. 115.)
The appellant contends there are two reasons why the allocution rule cannot be ignored in Kansas even where a plea of guilty is entered. He argues first, our statute directs that it be given; and secondly, in a case where the habitual criminal act may be imposed, the failure to give an allocution deprives the defendant of an opportunity to object to the imposition of the habitual criminal act.
In State v. Woodman, 127 Kan. 166, 272 Pac. 132, this court said:
“. . . After conviction, however, and before the allocution the defendant should be timely apprised that a sentence under the act of 1927 [the habitual criminal actl will be demanded against him, so that he may show cause, if he can, why such higher penalty should not be imposed. . . .” (p. 172.)
Based upon the foregoing citation the appellant argues this court has thus made the time of the allocution the time when the defendant in a criminal case must make his objections to the imposition of the habitual criminal act. It is to be noted, however, in the instant case that the appellant was twice advised, once on September 16, 1963, and again on October 7, 1963, prior to his hearing on the 10th day of October, 1963, that the state intended to invoke the habitual criminal act. In other words, the state did not wait until after the appellant had entered a plea of guilty to so advise him. Furthermore, the appellant, after having been so informed by the state, readily admitted to the trial court at least three prior felony convictions at a time when the appellant was represented by counsel who was present in court with him. If the appellant had any objection to the imposition of the provisions of the habitual criminal act, the appellant or his counsel should have raised such objection when the trial court first directed its inquiry to the appellant concerning previous convictions.
Be that as it may, the appellant argues he was given no opportunity to make his objection to the imposition o£ the habitual criminal act because there was no allocution, and because the evidence upon which the habitual criminal penalty was imposed was not introduced by the state until after sentence had been passed.
The foregoing argument is readily answered by the fact that where the defendant in a criminal action admits his prior convictions without raising objection, the state is not obligated to introduce further evidence of such prior convictions. (Darling v. Hoffman, 180 Kan. 137, 299 P. 2d 594; and State v. Graham, 172 Kan. 627, 242 P. 2d 1067.)
In State v. Lund, 51 Kan. 1, 32 Pac. 657, it was held that failure to give the allocution was not material error in a misdemeanor case. There the complaint was that the judgment was void because it did not show the allocution had been given before it was rendered. It was held failure of the judgment to show compliance with the statute was not reversible error especially in a misdemeanor case where the defendant’s presence is not absolutely required during the trial upon such charge.
The appellant relies on State v. Jennings, 24 Kan. 642, to the effect that even where no ground appeared why sentence should not be imposed, and no allocution was given, this court has remanded for resentencing in a felony case. There the court was confronted with a first degree murder case and the court confined its decision to the particular facts and circumstances of the case. The court said:
“The defendant, by his counsel, now asks and urges that this court shall set aside the judgment of the court below, and grant him a new trial; and if the new trial cannot be granted, he still urges that we shall set aside the judgment of the court below, so as to place the defendant back in the same situation and condition in which he was prior to the rendering of such judgment, and subsequent to the rendering of the verdict; and he urges this upon the ground, among others, that the court below faded to inform him of the verdict of the jury, and to ask him whether he had any legal cause to show why judgment should not be pronounced against him. It is true that the record fails to show that this was done. The record shows that the defendant excepted to the sentence, on the ground that the verdict was not sufficient to sustain such a sentence; but it does not in any other manner show that the defendant was informed as to what the verdict was, or that he had any opportunity extended to him to show cause why judgment should not be pronounced against him. We have, with great doubts and many misgivings, come to the conclusion to grant this last request of the defendant. . . .
“We wish to confine this decision within the particular facts and circumstances of this case. Therefore, such decision will be as follows:
“Where a defendant is charged on information with committing murder in the first degree, and ‘the jury find the defendant guilty in manner and form as charged in the information,’ without otherwise stating the degree of the offense of which they find him guilty, and no motion for a new trial is made, and the court sentences him as for murder in the first degree, and the record of the case does not show that he was informed by the court of the verdict of the jury, and asked whether he had any legal cause to show why judgment should not be pronounced against him, it will be held by the supreme court that the judgment of the court below must be set aside, and the cause remanded with the order that the defendant be again taken before the court below for sentence and judgment, and for such other and further proceedings as may be properly had in the case; and that before sentence or judgment shall be again pronounced against him, he shall “be informed by the court of the verdict of the jury, and asked whether he have any legal cause to show why judgment should not be pronounced against him.’ . . .” (pp. 658, 659, 660.)
Here, it is argued, there is a legal reason why the increased penalty should not be imposed — that is, two of the former convictions introduced in evidence appear to be void because the appellant was not represented by counsel. Thus, it is argued the complusion for remand seems much greater than in State v. Jennings, supra. (See, Annotation, 96 A. L. R. 2d 1292, 1337.)
The section of the statute here under consideration (62-1510, supra) is a procedural section of the criminal code. Therefore, failure to comply with its terms is not jurisdictional. Of course, failure to give an allocution is error where the statute directs that it be given, but it is not reversible error unless it has affected a substantial right of the defendant in a criminal action.
G. S. 1949, 62-1718 (now K. S. A. 62-1718) provides:
“On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”
Interpreting the foregoing statute this court said in State v. Neff, 169 Kan. 116, 218 P. 2d 248:
“The statute is not permissive but mandatory. It does not say the court may give judgment without regard to technical errors or defects, etc. It says, • ‘. . . the court must give judgment. . . . ’” (p. 129.)
In the early case of State v. Hammon, 84 Kan. 137, 113 Pac. 418, speaking of 62-1718, supra, this court said:
“The section of the code of criminal procedure quoted is an expression of the sound and sensible rule that error, to be availing, must be injurious in fact as well as in theory. This section has been upon the statute book since 1868 (Gen. Stat. 1868, ch. 82, § 293); and even before that, in 1860, this court, in the case of The Territory v. Reyburn, 1 Kan. [Dassler’s ed.] 551, in the second paragraph of the syllabus said:
“ ‘The whole spirit of the civil and criminal codes of practice, alike, is to disregard technicalities and observe the substance only.’
“Without referring to numerous early authorities, it is sufficient to suggest that this doctrine, now, in this state, made almost venerable by time, has in recent as well as in former years been approved and followed by this court. . . .” (pp. 145, 146.)
Could it be said that failure to give the appellant an allocution in the instant case affected a substantial right of the appellant?
Aside from the fact that the appellant admitted at least three prior-felony convictions, is the appellant in this proceeding in a Kansas court entitled to attack the validity of a judgment of conviction in a foreign jurisdiction?
The appellant argues it is now beyond question that the Sixth Amendment to the Federal Constitution, providing that “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence,” is operative upon the states through tire Fourteenth Amendment. (Gideon v. Wainwright, 372 U. S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, 93 A. L. R. 2d 733 [1963].) It is further argued the United States Supreme Court has made it clear that its decisions on the right to counsel are retroactive in effect. (See, Smith v. Crouse, 192 Kan. 171, 386 P. 2d 295, reversed 378 U. S. 584, 12 L. Ed. 2d 1039, 84 S. Ct. 1929 [1964]; Palumbo v. State of New Jersey, 334 F. 2d 524 [3rd Cir. 1964]; and United States v. LaVallee, 330 F. 2d 303 [2nd Cir. 1964], cert. den. 377 U. S. 998, 12 L. Ed. 2d 1048, 84 S. Ct. 1921 [1964].)
In United States v. LaVallee, supra, the Second Circuit Court of Appeals sitting In Banc held that Gideon v. Wainwright, supra, was retroactive in effect; that the petitioner in a federal habeas corpus action could attack his prior convictions in the federal court; that as a New York prisoner the petitioner was not obligated to challenge out-of-state convictions in courts of the rendering state; and that New York provides no procedure whereby such prior convictions could be challenged in New York courts. The court also held there were no state remedies to be exhausted as a requisite to federal habeas corpus proceedings attacking the New York second offender sentences where all prior convictions were obtained in other states.
In the year 1949 this court in McCarty v. Hudspeth, 166 Kan. 476, 201 P. 2d 658, had before it a petitioner in a habeas corpus proceeding who was sixteen years of age at the time he was first arrested pursuant to a warrant in a felony action. In a subsequent criminal proceeding in the district court of Wyandotte County, Kansas, the petitioner was given an increased penalty by reason of prior convictions pursuant to the habitual criminal act. The validity of his sentence was challenged on the ground that he was not represented by counsel in the criminal proceedings which resulted in his two prior felony convictions, also within the jurisdiction of the district court of Wyandotte County, Kansas. It was held the failure of the trial court to appoint counsel for a sixteen-year-old boy who was charged with felonies was not in accord with due process of law and convictions entered on pleas of guilty by such boy were void, and that upon a subsequent prosecution for a felony committed while he was out on parole, the increased sentences by reason of the prior convictions should be set aside, and the petitioner returned to the trial court for a proper sentence in which the void convictions should not be considered.
In the instant case, however, we are not confronted by prior felony convictions which occurred within the jurisdiction of this state. Here the prior convictions occurred in the state of Colorado, and in our opinion they are not subject to collateral attack in the courts of this state. The full faith and credit clause of the United States Constitution requires that the courts of this state give full faith and credit to the judgments of the courts of our sister states. The judgments of Colorado are entitled to full faith and credit and to a presumption of validity. (Coppage v. Hand, 185 Kan. 708, 710, 347 P. 2d 400.)
We therefore hold the appellant was not entitled to attack the validity of his prior felony convictions in the trial court, and as a result was not prejudiced by the failure of the trial court to give an allocution — his substantial rights have not been affected.
The judgment of the lower court is affirmed. | [
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|
The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment setting aside a deed to real estate which was alleged to have been procured by abuse of a confidential relationship.
The deed, dated and recorded September 8, 1959, was from Levina Beach, a widow, to her oldest daughter, Bertha Mae Dague. It conveyed 320 acres of farm land in Scott County, Kansas, of the approximate value of $32,000, subject to a mortgage of $6,500, and city real estate in Scott City, Kansas, of the approximate value of $10,000. There was no consideration for the deed.
The broad, general facts may be briefly stated.
Levina Beach died in Garden City Hospital on November 26, 1959, at the age of 73 years, leaving as her sole heirs at law three children whose names and approximate ages at ihe time were Bertha Mae Dague, age 45, Dale Beach, age 41 and Josephine Jones, age 29. Levina Beach and Joseph Beach, her husband, moved to Scott County, Kansas, in 1918, and shortly thereafter acquired the 320 acres of farm land. Joseph Beach died in 1945 having devised all his property to his widow, Levina Beach. In 1957, Levina Beach had a slight stroke which confined her to bed for several days and thereafter she was unable to hold things with assurance and her right leg was noticeably affected.
On February 2, 1959, Levina Beach was taken by Bertha Dague to the Scott County Hospital. Her illness was diagnosed as arteriosclerosis and chronic nephritis. She was released on February 28, 1959, and was then taken by Bertha Dague to the Tulsa Clinic where she was treated until April 1, 1959. She was then admitted to the St. Catherine Hospital in Garden City and was treated until May 5, 1959, at which time she was discharged. On August 1, August 29, and September 23, she was admitted for blood transfusions. Her last admission was on October 7, 1959, where she stayed until her death on November 26, 1959. Upon her first admission to the St. Catherine Hospital her diagnosis was chronic glomerular nephritis with uremia with associated diagnosis of hypertension and arteriosclerosis generalized.
At practically all times that Levina Beach was in the Scott County Hospital, the Tulsa Clinic and the St. Catherine Hospital, Bertha Dague was with her. During the periods Levina Beach was not in the clinic or hospitals she lived with and was cared for by Bertha Dague. The other two children and their spouses visited their mother on numerous occasions at the Scott County Hospital and at St. Catherine Hospital and offered to care for their mother but complained that they were prevented and discouraged from doing so by Bertha Dague.
Following the death of Levina Beach an administrator was appointed for her estate and this action was brought against Bertha Dague to set aside the deed in question. The defendant has appealed from the judgment of the district court setting aside the deed.
The appellant presents only an issue of fact. She contends that there was no substantial evidence to support the trial court’s finding (1) that the deed was procured by undue influence and (2) that a confidential and fiduciary relationship existed between Levina Beach and the appellant.
Before considering the specific facts in detail it may be helpful to consider the law applicable to confidential and fiduciary relationships and the validity of transactions in connection therewith.
It must be conceded, as appellant contends, that the mere relationship of parent and child does not raise a presumption of a confidential and fiduciary relationship. The fact that a gift of real estate is made by deed from a parent to a child in and of itself raises no presumption of over-reaching which would invalidate the deed. (Winkler v. Korzuszkiewicz (Shusky), 112 Kan. 283, 211 Pac. 124.)
Whether or not a fiduciary relationship exists and whether or not it has been abused does, to a great extent, depend on the particular facts and circumstances of each individual case. This court has refused, for that reason, to give exact definitions or fix definite boundaries for that class of human relations commonly known as fiduciary which, based on principles of common honesty, require fair dealing between parties.
In the case of Lindholm v. Nelson, 125 Kan. 223, 264 Pac. 50, this court held:
“A fiduciary relation does not depend upon some technical relation created by, or defined in, law. ■ It may exist under a variety of circumstances, and does exist in cases where there has been a special confidence reposed in one who, in equity and good conscience, is bound to act in good faith and with due regard to the interests of the one reposing the confidence.” (Syl. 3.)
We have no hesitancy in concluding that the facts in this case were sufficient to establish the existence of a confidential and fiduciary relationship. There was evidence to the effect that the defendant was a domineering woman and did completely dominate her mother, Levina Beach. That following her stroke, Levina Beach was lucid at times and at other times did not understand and could not communicate. During her last illness the appellant either supervised, assisted or took care of all her business matters. On June 6, 1959, Levina Beach signed and gave to Bertha Dague a general power of attorney. The trial court summarized the testimony as follows:
“Several witnesses on the other side testified that Levina Beach complained of bugs on her arms and in her hair and flies on the ceiling when there were none. That she could not talk in coherent sentences, could only mumble and made such comments as ‘don’t leave,’ ‘papers,’ ‘don’t let them,’ ‘want me to sign,’ ‘make me sign;’ that Dale Beach and Josephine Jones and their spouses did many things for Levina Beach such as assisting in building house, repair work and moving; that they were prevented from doing more by Bertha Dague, such as Bertha’s taking her away from church circle where she went with Josie when she did not want to leave. Dale Beach and wife testified that in July, 1959, Bertha Dague said that mother would not be in this condition if Josie had not been born, that she, Bertha, needed a level head to help her and the property should be divided between her, Bertha and Dale; that Josephine Jones had the keys to her mother’s house and went there to water the flowers and found that Bertha Dague had changed the lock; that after the entry of Levina Beach to the hospital never again did Josephine or Dale see their mother again when Bertha was not present except in the hospital.”
This court has held under similar facts that a confidential relationship existed. (Fairbank v. Fairbank, 92 Kan. 45, 139 Pac. 1011; see, also, additional cases subsequently cited.)
This court has under familiar precedents held that when a confidential relationship between members of the family involved has been established the grantee has the burden of showing that the conveyance was made in good faith and for a valuable consideration. This court reaffirmed the above rule in Henks v. Panning, 175 Kan. 424, 264 P. 2d 483, and stated on page 429 of the opinion:
“As early as Paddock v. Pulsifer, 43 Kan. 718, 23 Pac. 1049, we said:
“ Tn such a case as this, the burden of establishing the perfect fairness and equity of the conveyance to Mrs. Paddock was thrown upon her, in view of her father’s age, sickness and feebleness of mind, and the close relation of the parties. Confidence was necessarily reposed in Mrs. Paddock. If that confidence was abused in procuring the deed, the trial court very justly set it aside. The deed purports upon its face to have been executed for $2,500, “cash in hand paid.” This is much less than the value of the land. It is admitted by Mrs. Paddock that she paid nothing for the deed; and if she obtained it from her father upon the promise to pay $2,500 in money or in notes, without intending to pay for the same, or if she did not have the means of paying what she agreed to pay, this would be indicative of actual fraud upon her part. She claims, however, that her father gave her the land, and intended to give her the land without any consideration being paid. If this were true, Mrs. Paddock should have clearly established the perfect good faith of the transaction.’ (pp. 721, 722.)
“In Coblentz v. Putifer, 97 Kan. 679, 156 Pac. 700, we held:
“ ‘Rule followed that persons enjoying a confidential relationship with the grantor of gifts inter vivos have the burden of showing that such gifts were made without undue influence.’ (Syl. f 1.)
“Later in Hoff v. Hoff, 106 Kan. 542, 189 Pac. 613, the following statement appears:
“ ‘. . . Viewed as gifts inter vivos, the burden was on Peter, owing to his confidential relationship, to show that he did not obtain them through undue influence, and he failed to sustain that burden. (Smith v. Smith, 84 Kan. 242, 114 Pac. 245; Coblentz v. Putifer, 97 Kan. 679, 156 Pac. 700.)’ (p. 550.)
“Still later in Staab v. Staab, 160 Kan. 417, 163 P. 2d 418, we said:
“ ‘Under familiar precedents, when a confidential relationship between certain members of the family involved has been established, the burden is cast on a grantee to show the conveyance was made in good faith and for a valuable consideration. . . .’ (pp. 422,423.)
“For other decisions of similar import wherein the principle announced in the foregoing cases is recognized and applied see Madden v. Glathart, 125 Kan. 466, 265 Pac. 42; Grothaus v. Van Cleave, 125 Kan. 560, 264 Pac. 1055; Overstreet v. Beadles, 151 Kan. 842, 101 P. 2d 874.”
Under the facts as disclosed by the record the trial court was justified in concluding that the defendant failed to sustain the burden placed upon her of showing that she did not obtain the deed through undue influence exerted while in a confidential relationship with Levina Beach. The appellant stresses the fact that Levina Beach had the advice of an attorney in making the deed in question. The appellant did take Levina Beach to an attorney to have the deed drawn. However, the testimony does not disclose that the attorney gave Levina Beach any independent advice other than the legal effect of a deed as compared to a will.
The trial court found:
“That at many times during her eleven month illness she was incompetent to legally convey her property;
Levina Beach, for a period of time, after a blood transfusion, probably was legally competent to understand the consequences of her acts. The deed in question was executed ten days after she received a blood transfusion and fifteen days before she received another transfusion.
“Although Levina Beach was enfeebled suffering from progressive arteriosclerosis, uremia due to chronic nephritis, and nutritional anemia, on September 8, 1959, she was probably legally competent to understand the nature and consequences of her acts on said date, but had a low resistance to the constant influence, perhaps amounting to persuasion exercised by Bertha Dague.
“The court finds that the deed dated September 8, 1959, from Levina Beach to Bertha Dague is set aside for the reason such deed was procured by undue influence exercised toward Levina Beach while she was in a weakened physical and mental condition.” (Emphasis supplied.)
There was considerable evidence although somewhat conflicting in many respects.
It is the responsibility of the trial court, not this court on appeal, to weigh the evidence and settle the facts based on conflicting testimony. In Hendrixon v. Schemahorn, 193 Kan. 640, 396 P. 2d 352, we stated at page 643 of the opinion:
“It is equally well settled that in considering evidence on appellate review, a verdict or finding made by the trier of the facts and supported by evidence will not be disturbed on appeal and that findings of fact necessarily embraced in the general judgment rendered by the district court will not be disturbed if there is some, though controverted, evidence to sustain it. (Dryden v. Rogers, supra, pp. 154, 157; Curry v. Stewart, 189 Kan. 153, 155, 368 P. 2d 297; Nichols Co. v. Meredith, 192 Kan. 648, 652, 391 P. 2d 136.)”
We conclude that there was substantial evidence to support the findings of the trial court.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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|
The opinion of the court was delivered by
Hatcher, C.:
The defendant was convicted on ten counts of forgery in the third degree. Five of the counts were for writing forged instruments contrary to the provisions of what is now K. S. A. 21-616, and five of the counts were for passing forged instruments contrary to the provisions of what is now K. S. A. 21-621.
The general facts which are not seriously disputed will be stated.
The evidence developed that the defendant, Albert Lesco, went to Independence, Kansas, in 1951, as a minister of the First Southern Baptist Church. He followed the ministry in Independence until 1960, when he resigned his position at the church and purchased an interest in a company called the Audio Library Company which he operated. In 1961, the defendant opened an appliance store in Independence, Kansas, under the name of the Leseo Sales Company. This store was engaged in the sale at retail of appliances, radios, televisions and like merchandise. In November of 1962, defendant opened a branch appliance store in Coffeyville, Kansas. At the opening of the store defendant gave away a door prize for which patrons of the store and others who went there signed their names on slips of paper and placed them in a box from which a drawing was made. These names were later used in the forgeries.
The Gibraltar Finance Company was engaged in purchasing chattel mortgages and conditional sales contracts from various dealers in the area. These contracts represented the sale of merchandise by the dealers, or store owners, to their customers on credit which were then sold with full recourse to Gibraltar Finance Company who would pay the dealer in cash something less than the entire contract price.
In 1961, the defendant as the Leseo Sales Company began selling such conditional sales contracts to the Gibraltar Finance Company. In the beginning the contracts sold to Gibraltar were legitimate in all respects. After a time, however, defendant found that he needed additional operating capital for his business. He went to the Gibraltar Finance Company and was told that they were not in a position to loan operating capital to him without security.
Defendant admitted that he thereafter started selling forged conditional sales contracts to the finance company. He identified the conditional sales contracts upon which he was charged as being ones on which he signed the names of the purported purchasers and assigned them to Gibraltar; that the persons whose names he' forged existed, but that he did not have authority from them to sign their names to the contracts. He further testified, after identifying the. contracts introduced in evidence as being spurious, that he did not know exactly how many contracts he forged and sold to the finance company, nor did he recall all the different names that he had placed on them. Employees of the finance company testified that of the contracts purchased by them from the defendant, 248 were forgeries. They totaled in excess of $100,000.00. They also testified that the actual cash loss to the finance company from the purchase of these contracts was some $70,000.00.
The officials of the finance company testified that when they first began purchasing conditional sales contracts from the defendant, they verified the contracts with each of the customers named thereon, and the customer made payments-under the terms of the contracts directly to Gibraltar. Later this arrangement was changed. The defendant asked that he be permitted to make the monthly collections from the purchasers represented by each of the contracts he had sold to Gibraltar and he in turn would remit these payments monthly to the finance company. He stated that he desired to do this because it would permit more floor traffic through his stores and thus give him an additional opportunity to make sales and for the further reason that some people objected to dealing with finance companies. The company agreed to this change' in arrangements and that thereafter it would send defendant a monthly fist of the contracts and the current monthly charge due.
Defendant testified that after the manner of payment to Gibraltar was modified he made the monthly payments on the contracts and that at least part of these monthly payments were made from money he received from Gibraltar by selling them other forged contracts. The payments on all the forged contracts sold by appellant to Gibraltar Finance Company were current, or approximately so, up until the time of appellant’s arrest.
The first question raised by appellant reads:
“Did the Court Err in Allowing the Reading of the Testimony to the Jury Made by a Witness at a Prior Hearing Without Requiring a Proper Foundation to be Laid. Which Testimony was Prejudicial to the Appellant, and Which was Read over the Objection of the Appellant?”
The determination of the question requires the consideration of certain specific facts.
This áppeal is taken from the second trial of this appellant on the information herein. The first trial commenced on October 15, 1963, and ended on October 18, 1963, with the jury being unable to agree. At that trial the state presented Sharon Metcalf who testified that she had been employed by the county attorney of Montgomery County, Kansas, during the months of May, June and July of 1963, and that on June 12, 1963, and June 18, 1963, she had been present when appellant was questioned by the county attorney concerning the transactions involved in this case; that the county attorney had advised the appellant of his rights, and that she had taken shorthand notes of the questions put to the appellant by the county attorney and the answers made by the appellant. In the first trial the court ruled that the statements made by the appellant were voluntarily made although later repudiated by the appellant, and allowed the statements to be read into the record in the testimony of Sharon Metcalf.
In the second trial Undersheriff Lessman testified that he had taken a subpoena to the address in Independence, Kansas where Sharon Metcalf lived while she resided in that city and, not finding her, called her at her place of employment in San Bemadino, California, and that in response to, or as a result of, that phone call, Sharon Metcalf wrote a letter to the undersheriff in which she stated that she was a resident of San Bernadino, California, was married and had two children and would be unable to attend the trial from which this appeal is taken. The prior testimony was read to the jury under the testimony of Hazel S. Burris, the court reporter, who took the record of the first trial. The appellant made timely objection to the reading of the transcript of this testimony on the grounds that no proper foundation had been laid. The objections were overruled by the court.
This court has long adhered to the rule that the limitation upon the right of the state to use the testimony of an absent witness given at a former trial is dependent upon the foundation laid for the admission of such testimony. It must be made to appear that the witness who gave such testimony at the previous trial cannot by the exercise of reasonable diligence be produced. (State v. McClellan, 79 Kan. 11, 98 Pac. 209; State v. Carter, 149 Kan. 295, 87 P. 2d 818; State v. Eason, 163 Kan. 763, 186 P. 2d 269; State v. Streeter, 173 Kan. 240, 245 P. 2d 1177; State v. Brown, 181 Kan. 375, 312 P. 2d 832; State v. Guthrie, 192 Kan. 659, 391 P. 2d 95.)
Under the authority of the above cases and prior to the enactment of the Uniform Act to Secure Attendance of Witnesses from Without State it was considered that a sufficient foundation had been laid if it was established by competent evidence that the witness was absent from the state and would not voluntarily return to testify.
The appellant contends that the legislation providing for a Uniform Act to Secure Attendance of Witnesses from Without the State, which was adopted by both the State of Kansas (K. S. A. 62-2801, et seq.) and the State of California (Cal. Penal Code, section 1334, et seq.) requires as a proper foundation proof that a diligent effort was made to produce the witness under the terms of such act. Our attention is called to State v. Tyler, 187 Kan. 58, 353 P. 2d 801, in which this court reversed the conviction because a proper foundation had not been laid for use at the trial of testimony given at the preliminary hearing. In the Tyler case the absent witness was the manager of the store from which the alleged theft had occurred and was in reality the complaining witness. The only testimony to support the use of the previous testimony was to the effect that when an officer sought to serve a subpoena on the witness he was informed that the witness had moved to Miami, Oklahoma. No effort was made to secure a voluntary appearance. This court took judicial notice of the fact that it was perhaps a three hour automobile ride from Miami, Oklahoma to Olathe, Kansas over excellent roads and held:
“In a criminal case, the state did not sufficiently lay a basis for the introduction of a transcript of the former testimony of an absent witness by merely offering testimony of a deputy sheriff that he attempted to serve a subpoena upon the witness and found that witness had moved to Oklahoma. It was further agreed that the state had made no effort to secure the voluntary appearance of the witness or to employ the uniform act to secure the attendance of witnesses from without the state.” (Syl.)
A much different situation existed in the case under consideration. The witness was not what might be called a material or complaining witness. The only purpose of her testimony was to establish the veracity of a transcript of questions and answers which took place between the county attorney and die defendant and were transcribed by her. She also testified that the county attorney had advised the defendant of his rights. The accuracy of the witnesses transcription is not questioned. The defendant was given full opportunity to cross-examine the witness at the previous trial.
It should also be noted that the witness with her two small children was about as far removed from the place of trial as she could be and remain in the United States.
We do not believe that under the facts and circumstances as indicated that the state should be put to the trouble and expense of attempting to obtain a summons for the witness under the Uniform Act before her previous testimony was permitted to be read. The Uniform Act to Secure the Attendance of Witnesses from Without State does not provide for the delivery of a witness residing in another state as a matter of course. After a judge of a court of record of this state has certified to a judge of a court of record in the county in which the person is found that he is a material witness in a criminal prosecution, a hearing is held and a summons to attend and testify is issued by the judge in the foreign state only if he “determines that the witness is material and necessary, [and] that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution . . (K. S. A. 62-2802.) It would appear that the judge before whom the prosecution is to take place should have some discretion to determine under what circumstances resort should be had to the Uniform Act. The Uniform Act was intended as a matter of comity between states to enable states to obtain material witnesses for criminal prosecutions. It was never intended to further limit the use of prior testimony of an absent witness in a criminal prosecution.
The appellant next contends that the district court erred in transferring the trial to another division of the court and thus advancing the time of trial.
The district court of Montgomery sits in the two cities of Independence and Coffeyville.
The first trial of this case took place at Independence, Kansas, and ended in a hung jury on October 15, 1963. The court ordered a mistrial, discharged the jury and continued the case until the February, 1964, term. On November 15, 1963, the state filed its motion to transfer the case to the intervening December, 1963, term of said court sitting at Coffeyville. This motion was argued by both parties on November 27, 1963. The court found that, although this case had been continued to February, 1964, term of the district court, there was an intervening December, 1963, term of court sitting at Coffeyville; that defendant was confined in the county jail in default of bond, and that the case should be transferred to the December, 1963, term sitting at Coffeyville, “subject to usual orders of continuance upon good cause shown.”
At the time the court ruled on the motion to transfer the case, the cause was set for trial to a jury on December 9,1963.
The statutory authority for the transfer of cases between the. divisions of the District Court of Montgomery County, Kansas is K. S. A. 19-1306a, which reads in part as follows:
“. . . Provided, That any action pending in said district court sitting at either of said cities of Independence or Coffeyville may be assigned or transferred for hearing or trial to said court sitting at the other of said cities, either by order of the district court of Montgomery county, Kansas, or the judge thereof, or by stipulation of the parties.”
The transfer was a matter within the discretion of the trial court. There is nothing in the record to indicate that the discretion was abused or that the appellant’s rights were in any way prejudiced.
The appellant last contends that the trial court unduly limited appellant’s cross-examination; refused to allow appellant to pursue his theory of defense, and that its conduct before the jury was prejudicial to appellant.
The limits of a judicial opinion will not permit an attempt to list the numerous clashes between the court and counsel for appellant as to the propriety of cross-examination and direct examination. This controversy largely evolves from the unique defense which appellant attempted to present. The appellant presents the theory of his defense as follows:
“The Appellant’s theory was that the agreement between himself and the officers of the finance company, as agents, and the finance company, was a means only of circumventing the restrictions of the Small Loan laws of the State upon the finance company, thus allowing loans of operating capital and without any intent to defraud any persons or corporations.”
The appellant states further:
“The theory of the defense in this action was that the finance corporation and the sales company had discovered a means whereby the finance company could lend monies to the Appellant for operating capital without the applicable restriction of the Small Loan laws of this State. If this theory was correct, certainly the officers of the finance company, as well as Mr. Leseo, were using these contracts purely for the purpose of the record, for their mutual benefit, with the expectation that both would benefit and that no one would lose any money. . .
The difficulty with appellant’s contention is that he was using the forged instruments to obtain money from the finance company when he knew he was in financial difficulty. He also knew that the finance company reassigned forged conditional sales contracts to banks for cash.
In State v. Calhoun, 75 Kan. 259, 88 Pac. 1079, this court in considering a prosecution for the offenses here charged stated at page 263 of the opinion:
“. . . Proof of the giving of a forged note as collateral security for a loan of money, with the knowledge that the note was false and forged, and with an intent to defraud, is sufficient to show an uttering and passing of the forged paper; and the fact that the bank did not suffer loss nor find it necessary to realize on the collateral security does not relieve the act of its criminal character. Nor would the fact that the note as passed was not accepted as genuine by the one to whom it was offered and who therefore incurred no risk of injury from loss operate to diminish the crime.”
The facts attempted to be established by the appellant did not as a matter of law constitute a defense as they might have influenced or prejudiced the jury, and the court properly made such rulings as were necessary, both on cross-examination and direct examination, to keep such evidence from the case.
A careful examination of the record discloses no trial errors which would justify the granting of a new trial.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action to foreclose a real estate mortgage. The pertinent facts follow.
On October 20, 1959, New Hope Baptist Church, a corporation (hereinafter referred to as New Hope), executed and delivered a promissory note to the appelle, Broadhurst Foundation, a charitable trust (hereinafter referred to as Broadhurst), in the amount of $70,000. The note was secured by a mortgage on its described real estate located in Sedgwick county.
On November 7, 1962, the appellant in the instant action, Seaboard Surety Company, a corporation (hereinafter referred to as Seaboard), brought an action against New Hope and others, in- eluding Broadhurst, to foreclose its mechanic’s lien on the property in question. A judgment in the amount of $30,706.46 was obtained by Seaboard-against New Hope and declared to be a second lien upon the real estate owned by New Hope, subject only to the above mortgage lien of Broadhurst. Pursuant to this judgment the real estate was sold at a sheriff s sale to satisfy the judgment. Seaboard purchased the property by bidding the full amount of its judgment and received a certificate of purchase subject to New Hope’s right of redemption.
On April 24,1963, Broadhurst filed the instant action against New Hope to foreclose its mortgage on the real estate, naming Seaboard as a defendant. On May 10, 1963, New Hope filed its answer admitting the allegations of plaintiff’s petition but preserving its right of redemption. Broadhurst filed a supplemental petition on June 28 alleging that New Hope agreed in the mortgage instrument to waive its equity of redemption. On the same day a supplemental answer was filed on behalf of New Hope admitting such waiver, and Broadhurst filed its motion for judgment on the pleadings.
The trial court sustained the mentioned motion and found that New Hope had duly executed and delivered the mentioned note to Broadhurst, and to secure the payment of the note New Hope had duly executed and delivered its mortgage on certain described real estate in Sedgwick county; that the terms and conditions of the mortgage had been broken and by reason thereof the note and mortgage was due and payable; that Broadhurst was entitled to have its mortgage foreclosed and adjudged and decreed to be a first and prior lien upon the real estate; that Seaboard had previously foreclosed a mechanic’s lien which was subject only to Broadhurst’s lien; and that Seaboard was the holder of a certificate of purchase at the sheriff’s sale.
The trial court rendered judgment against New Hope and in favor of Broadhurst in the sum of $67,059.31 plus interest. The court foreclosed the mortgage and adjudged it to be a first and prior lien upon the real estate, and granted Broadhurst possession of, and the rents and profits from, said real estate after the sheriff’s sale until redemption. A decree was entered granting New Hope or its transferee the right to redeem within eighteen months from the date of said sale. The court further decreed that Seaboard, the holder of the certificate of purchase at the sale in the mechanic’s lien foreclosure action, after receiving a sheriff’s deed, would be entitled to the equity of redemption, but would not be entitled to the possession of the real estate.
Seaboard contends there was no waiver of the right of possession, or the right of redemption in the mortgage given by New Hope to Broadhurst; and, therefore, it should be entitled to the right of possession, and the right to rents and profits from the real property in question before the redemption period expired between New Hope and Broadhurst. Consideration of Seaboard’s contentions will require an examination of the redemption statutes.
For many years the legislature has strictly regulated the right of redemption in this state in order to protect mortgagors and their transferees from harsh foreclosures. Such protection is afforded in G. S. 1949, 60-3438, which, in part, provides:
“. . . That any contract in any mortgage or deed of trust waiving the right of redemption shall be null and void.”
The importance of protecting the mortgagor’s right of redemption in this state can be denoted from the fact this provision was enacted in 1893.
In 1929 the legislature saw fit to provide an exception in the case of corporate mortgagors. This exception is now included within G. S. 1949, 60-3439, which, in part, provides:
“. . . That any corporation . . . may, as mortgagor, agree in the mortgage instrument to a shorter period of redemption than eighteen months, or may wholly waive the period of redemption as against said corporation mortgagor only and all such agreements when so made shall be fully binding on such mortgagor.”
This section would unquestionably give New Hope, a corporation, the right to waive its equity of redemption if it so desired.
The only purported waiver provision in the mortgage reads:
“It is further expressly agreed, by and between the parties hereto that if any default be made in the payment of the principal sum of this mortgage, or any interest installment, or the taxes, insurance premiums, or in the case of the breach of any covenant herein contained, the whole of said principal sum, with interest, shall be due and payable, and this mortgage may be foreclosed and said second party shall be entitled to the immediate possession of the premises and all rents and profits thereof.”
The trial court considered the supplemental answer filed on behalf of New Hope which admitted waiving the equity of redemption; however, the court held there had been no waiver of New Hope’s redemption rights. The court expressly gave New Hope eighteen months within which to redeem from the date of the sale. Such holding cannot be questioned by this court since the language quoted from the mortgage does not appear to be sufficient to indicate a waiver of New Hope’s right of redemption.
The attorney for Broadhurst maintains that even though New Hope did not waive its equity of redemption, under G. S. 1949, 60-3439, New Hope, a corporation, could and did waive its right to possession and rents and profits, and said waiver was binding upon Seaboard. Therefore, the determinitive question before this court is whether or not under the provisions of 60-3439 a corporate mortgagor [New Hope], which does not waive its redemption rights, may effectively waive its right to possession and rents and profits.
The policy of this state, as previously noted, has always been to protect redemption rights. We do not believe the legislature intended to change this policy in 1929 when it enacted the exception as to corporations in section 60-3439. The continued policy of protecting mortgagor’s rights is borne out by the other provisions retained in this section. Section 60-3439 also, in part, provides:
“The defendant owner may redeem ... at any time within eighteen months . . . and shall in the meantime be entitled to possession . . .”
This provision clearly gives the right of possession of the mortgaged property to the owner during the redemption period. Since the right to possession of the property includes the right to the rents and profits, the owner is entitled to the rents and profits during this period. (Smith v. Shaver, 112 Kan. 790, 212 Pac. 666; Slabaugh v. State Bank, 123 Kan. 484, 256 Pac. 139; Hay v. Crawford, 159 Kan. 723, 158 P. 2d 463, 159 A. L. R. 388.)
One of the most important purposes of the redemption statutes is to provide the mortgagor with rents and profits from the property during the redemption period to enable him to redeem. Such purpose is specifically indicated in G. S. 1949, 60-3461, which provides the holder of the certificate of purchase may appoint a receiver to take possession in order to prevent waste; “but the income during said time, except what is necessary to keep up repairs and prevent waste, shall go to the owner or defendant in execution, or the owner of the legal title.” This court has consistently held that any provision written into a mortgage attempting to waive the. right of possession of the property, or to the rents, income and profits therefrom during the period of redemption, is void. (Capitol B. & L. Ass’n v. Ross, 134 Kan. 441, 7 P. 2d 86.) This court held in Mace v. Norwood, 155 Kan. 302, 124 P. 2d 497:
“Under our mortgage redemption statute (G. S. 1935, 60-3438 et seq.) the mortgagor is entitled to the use of rents of the mortgaged property during the period of redemption, and any contract or plan, not specifically authorized by statute, which would defeat his right to such use or rent is in conflict with the statute, and therefore invalid.” (Syl. ¶ 3.)
The position of this court was well stated in Capitol B. & L. Ass’n v. Ross, supra:
“Appellant argues the right to redeem within the period named in the statute and the right of the defendant owner to the possession of the property during that time are separate and distinct things from the rents, profits or income from the property, and says it is not attempting to take from the defendant owner the right to redeem — in fact, hopes he will redeem — nor is it trying to take from him the naked right of possession, but insists that it is entitled to rents and income. That construction of the statute would give the defendant owner naked legal rights as distinct from the beneficial rights which would grow out of the rents and profits of the property, and is a construction not consistent either with the purposes of the statute as a whole or with the interpretation previously placed upon it by this court.” . . . (p. 443.)
The right to possession and to income are incidents which inhere in the right of redemption. If we take this right to possession and income from the mortgagor, who otherwise lacks sufficient funds to redeem, then to him the redemption period becomes a useless superfluity and the right of redemption a vain thing. (Smith v. Shaver, 112 Kan. 790, 212 Pac. 666.)
Perhaps the most important aspect of the case before us was the failure of New Hope to waive its equity of redemption. We realize the above-cited cases involve individual mortgagors, who, under G. S. 1949, 60-3438, could not waive their redemption rights. However, New Hope’s failure to waive its right of redemption brings the present case within the foregoing rules. The policy of protecting mortgagors in this state is too important to allow even a corporate mortgagor to waive its rights to possession and income without also waiving its equity of redemption.
We have been asked to construe an exception to our redemption statutes. The statutes must, of course, be construed in their entirety with a view of giving effect to the legislative intent. It must be remembered that ordinarily a strict or narrow interpretation is applied to statutory exceptions. (50 Am. Jur., Statutes, § 431, p. 451.) In construing a statute, any doubt should be resolved against the "exception, and anyone claiming to be relieved from the statute’s operation must establish thát he comes within the exception. (Crawford, Statutory Construction,' § 299, p. 610.)
The exception contained in section 60-3439 simply provides that a corporate mortgagor may waive its right of redemption. There is absolutely no language in the exception concerning the waiver of possession, or income and profits. The policy of protecting mortgagors and their transferees under our redemption statutes is so strong that this court has never allowed a mortgagor to waive his rights to possession, or to rents and profits. In view of this policy, in our opinion, if the legislature intended to allow a corporation to waive its rights to possession and to rents and profits without waiving its right of redemption, then this should have been specifically spelled out in 60-3439. We cannot arbitrarily add another exception to this statute. (National Bank of Topeka v. Saia, 154 Kan. 740, 747, 121 P. 2d 251, 138 A. L. R. 1290.)
In view of what has been said, we think the trial court erred in holding that Broadhurst was entitled to the possession of, and the rents and profits from, the real estate in question during the redemption period. That portion of the judgment is reversed with direction to award the possession and rents and profits to the owner or titleholder. The judgment in other respects is affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Price, J.:
In June, 1962, plaintiff Unruh filed a quiet title action against defendants O’Shay and Cook. Shortly thereafter plaintiff filed an ejectment action against the same defendants and their tenant, Whorton. The actions presented the same question and were tried as one case. Plaintiff has appealed from an adverse judgment. For convenience, we show the title of the case on appeal as the parties are listed in the ejectment action.
Basically, the case involves the title and right to possession of three tracts (“A,” “B,” and “C”) of land near the Arkansas River in Barton county. A map of the area is contained in the abstract and upon oral argument of the appeal it was conceded that only two tracts, designated as “B” and “C,” are involved.
At a pre-trial conference it was stipulated that tracts “A” and “C” resulted from accretion which occurred prior to the issuance of a patent to defendants; that defendants and their predecessors in title had been in possession of tract “A” since the issuance of their patent dated December 2, 1927; that plaintiff did not claim to be in possession of tracts “B” and “C,” but did claim a right thereto, and that plaintiff’s predecessor in title was issued a patent covering all three tracts prior to defendants’ patent to tract “A,” and that the same was properly issued and recorded.
The issues of fact to be determined were whether, since 1927, defendants had been in open, notorious and hostile possession of the tracts in question under claim of right or color of title. The questions of law presented were whether title by adverse possession can be perfected by one who has been in actual, exclusive, open and continuous possession for the requisite period, without knowledge, and whether, in such case, a claimant must be aware of his title deficiency, and further, whether the defense of adverse possession is available to defeat an action to quiet title.
Considerable evidence, both oral and documentary, was introduced at the trial, and at the conclusion thereof the court, with respect'to defendants O’Shay and Cook ruled:
“It is the finding of the court that the defendants, through themselves and their predecessors in title, have been in open, notorious, exclusive, adverse, and hostile possession of the tracts designated “A,” “B,” and “C” on the plat introduced in evidence in this case as Plaintiffs Exhibit 1, since 1927, or a period of more than fifteen years, and that there are no factual circumstances or legal principles which in any way bar the defendants from claiming title to the tracts as indicated and all of them by adverse possession, and it is the ruling of the court accordingly that they are the owners of said tracts and title is quieted in them as tenants in common.”
and an appropriate order was made with reference to defendant Whorton, the tenant.
Judgment was entered accordingly and plaintiff has appealed, contending that defendants cannot sustain the defense of adverse possession upon the theory of claim of right when as a matter of fact the original possession was had under color of title and possession continued throughout the statutory period upon that belief.
Highly summarized, the evidence which supports the judgment rendered, established the following:
Defendants’ predecessors in title received a patent from the state dated December 2,1927, covering tract "A.” They immediately served notice to the occupant of all land lying north of a fence (which included the area now designated as tracts “B” and “C”) that they would take possession after the wheat harvest of 1928. Neither the plaintiff nor his father made any claim of right or interest in and to the three tracts throughout the 35-year period, and plaintiff had offered to buy the property north of the fence from the defendants. On cross examination plaintiff testified that defendants had been in continuous possession since 1928 of all land lying north of the fence to the river, that they had farmed it through the years, that they had cleared trees off of tract “C” and had built an elevator with tibe wood, and that it was his impression that defendants owned everything from the fence to the river, which area, as before stated, included all of tracts “A” “B” and “C.” He further testified that during the entire period from 1927 defendants had been in full control over the property in question, and that up until this action was filed he neither mentally nor physically made any claim to any part of the land in question. In 1931 plaintiff’s predecessor in title was the chief petitioner in a road condemnation proceeding and in which defendants were allowed damages for land taken off of the east side of the tracts in question, which petition thus acknowledged ownership of the tracts in defendants.
It is considered unnecessary to indulge in a lengthy discussion of the well established principles relating to the law of adverse possession. They have been stated many times. In Fear v. Barwise, 93 Kan. 131, 143 Pac. 505, it was held:
“Possession to be adverse need not be under color of title, but must be with claim of right. Claim of right, claim of title, claim of ownership, and hostile possession, are different expressions used to indicate the intention of the possessor to appropriate the land to his own use regardless of his rival’s claims.” (Syl. 3.)
The subject is exhaustively treated in Truck-Trailer Supply Co. Inc. v. Farmer, 181 Kan. 396, 311 P. 2d, 1004, and Boese v. Crane, 182 Kan. 777, 324 P. 2d, 188. See also Manville c. Gronniger, 182 Kan. 572, 322 P. 2d, 789.
In an action such as this a plaintiff must rely on the strength of his own title and not. on the weakness of that of his adversary, and where there is dispute or doubt as to whether the occupant of lands claims adversely so as to acquire title by adverse possession, a question of fact is presented to be determined by the trier of the facts, and the determination so made, if based upon substantial competent evidence, is binding on appeal. The evidence in this case, a portion of which has heretofore been summarized, fully supports the claim of defendants and the judgment rendered.
No error appearing, the judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was a workmen’s compensation case. The district court found that the claimant, John D. Jones, was in the employ of respondent city on March 22, 1962, and that he sustained injury by accident arising out of and in the course of that employment on that date.
In the words of the respondent city and its insurance carrier (respondent), the principal question involved is the contention that: “There was no substantial competent evidence to support the trial court’s finding that claimant was in the employ of the City of Dodge City when he was injured.”
The undisputed facts are summarized: The claimant, a 63-year-old man, was a general carpenter who had worked mostly on his own during the past twelve years. Mike Gebhart, manager of the Dodge City airport, lived in a dwelling at the airport owned and furnished to him by the city. The ceiling over the stairway into the basement of the residence needed repair. Gebhart called Dwight Holland, manager of the T. M. Deal Lumber Company, of Dodge City, and asked him to send a man named George Keller out to do the work. Holland told Gebhart that Keller was tied up on a job and that he would send claimant Jones out when Jones got back from Texas. On March 22, 1962, Holland called the claimant and told him that Gebhart wanted him to come to the city airport; that Geb hart had tried to get in touch with him, but failed, and that he should go to the airport and contact Gebhart. The claimant drove to the airport and contacted Gebhart who took him to the house and told the claimant that he wanted the wall and ceiling sheetrocked and finished. Gebhart told the claimant to figure the materials he needed, order them from T. M. Deal Lumber Company, and charge them to the city airport. Nothing was said about wages. Gebhart left, and did not see Jones again until after he was hurt. Jones ordered the materials, and while waiting for them to be delivered, started preparing the area for the sheetrock. The claimant got another man who was an employee of the lumber company to help him with the ceiling. The claimant used his own tools and equipment in doing the work.
After the sheetrock arrived, the claimant started installing it and while doing so, he slipped and fell off the scaffolding, approximately eight and a half or nine feet, landing on his hips and the tailbone. He had immediate pain in his hips and right leg and was taken to the Dodge City Medical Center, and then to the hospital where he was treated for a broken pelvis and dislocated left kidney.
The district court found that the claimant suffered a 30 percent permanent partial general disability, and made an award in conformity with the Workmen’s Compensation Act with respect to the amount of compensation due and owing the claimant, based upon his average weekly wages, and for medical and hospital expenses incurred. The respondent concedes there is substantial competent evidence in the record to substantiate the district court’s finding in these respects, and, as previously indicated, the only question presented is whether the claimant was an employee of the city on the day he was injured.
Under K. S. A. 44-556, the appellate jurisdiction of this court in workmen’s compensation cases is limited to reviewing questions of law only. Whether the district court’s judgment in a compensation case is supported by substantial competent evidence is a question of law as distinguished from a question of fact. (Holley v. Dickey Clay Mfg. Co., 157 Kan. 355, 139 P. 2d 846, 148 A. L. R., Anno., 1131; Coble v. Williams, 177 Kan. 743, 747, 282 P. 2d 425; Bowler v. Elmdale Developing Co., 185 Kan. 785, 347 P. 2d 391.) In reviewing the record to determine whether it contains substantial evidence to support the district court’s factual findings, this court is required to review all of the evidence in the light most favorable to the prevailing party below. Where the findings of fact made by the district court are based on substantial evidence, they are conclusive, and we have no power to weigh the evidence and revise those findings or reverse the final order of the court. Although this court may feel the weight of the evidence, as a whole, is against the findings of fact so made, it may not disturb those findings if they are supported by substantial competent evidence. (Evans v. Board of Education of Hays, 178 Kan. 275, 284 P. 2d 1068; Barr v. Builders, Inc., 179 Kan. 617, 296 P. 2d 1106; Weimer v. Sauder Tank Co., 184 Kan. 422, 337 P. 2d 672; Durnil v. Grant, 187 Kan. 327, 356 P. 2d 872.) Numerous decisions of like import are cited in 9 West’s Kansas Digest, Workmen’s Compensation, §§ 1940, 1969, and 5 Hatcher’s Kansas Digest (Rev. Ed.), Workmen’s Compensation, §153.
The term “substantial evidence,” when applied to workmen’s compensation cases, means evidence possessing something of substance and relevant consequence and carrying with it fitness to induce conviction that the award is proper, or furnishing substantial basis of fact from which the issue tendered can be reasonably resolved. (Barr v. Builders, Inc., supra; Weimer v. Sauder Tank Co., supra.)
The question whether, in a given situation, a claimant for compensation is an employee within the terms of the Workmen’s Compensation Act, or an independent contractor, has frequently been before this court. In Evans v. Board of Education of Hays, supra, this court defined the terms as follows:
“. . . the term ‘independent contractor’ is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to control of his employer, except as to the result of his work, and an independent contractor represents the will of his employer only in the result of his work and not as to the means by which it is accomplished. (Pottorff v. Mining Co., 86 Kan. 774, 122 Pac. 120; Shay v. Hill, supra; Mendel v. Fort Scott Hydraulic Cement Co., 147 Kan. 719, 78 P. 2d 868; Bittle v. Shell Petroleum Corp., 147 Kan. 227, 231, 75 P. 2d 829.)
“. . . a master is a principal who employs another to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service. A servant is a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master. (Hurla v. Capper Publications, Inc., 149 Kan. 369, 87 P. 2d 552; Houdek v. Gloyd, 152 Kan. 789, 794, 107 P. 2d 751; Garner v. Martin, 155 Kan. 12, 112 P. 2d 735.)” (l. c. 278, 279.)
It is often difficult to determine in a given case whether a person is an employee or an independent contractor since there are elements pertaining to both relations which may occur without being determinative of the relationship. In other words, there is no exact formula which may be used in determining if one is an employee or an independent contractor. The determination of the relation in each instance depends upon the individual circumstances of the particular case.
The primary test used by the courts in determining whether an employer-employee relationship exists is whether the employer has the right of control and supervision over the work of the alleged employee, and the right to direct the manner in which the work is to be performed, as well as the result which is to be accomplished. It is not the actual interference or exercise of control by the employer, but the existence of the right or authority to interfere or control, which renders one a servant rather than an independent contractor. (Evans v. Board of Education of Hays, supra; Davis v. Julian, 152 Kan. 749, 756, 107 P. 2d 745; Schroeder v. American Nat'l Bank, 154 Kan. 721, 121 P. 2d 186.)
In the instant case Gebhart showed claimant the ceiling and informed him as to the type of repairs needed. He told the claimant where to get the materials and to charge them to the city airport. Gebhart also testified that if claimant, during the course of the repair work, had been doing it wrong, he would have informed him. Moreover, the city clerk, Merle Smith, testified he paid the invoices for the materials used by claimant, and that if anyone receipted for materials received for the city and the city paid for them, it was on the basis of a receipt for a city employee. The claimant thought he was working for the city and that Gebhart was his boss. On redirect examination he testified as follows:
“Q. Now, when you went out there to the airport you say after Mike told you what he wanted done, he told you he wanted the sheetrock taped and jointed? A. That is right. Q. If Mr. Gebhart told you he didn’t want it taped and jointed would you have taped and jointed? A. No. Q. If Mr. Gebhart told you to leave out some pieces of sheetrock, leave some open, what would you have done? A. I would have done what he told me. Q. He was the boss? A. Yes.”
The respondent, however, maintains that no control was exercised over claimant in his performance of the work, and that after the ceiling which required repairing was pointed out to him, he performed the work according to his own ideas subject only to the final result to be achieved.
It is disclosed in the record before us that claimant had been engaged in carpentry work for many years. The fact an employee may use his own judgment in the manner of performing his work does not, of itself, make him an independent contractor. In this case the important consideration is that even though Gebhart left the manner of making the repairs largely to the skill and judgment which claimant possessed, he still had the reserved right to control the method and means of doing the work, and the claimant was at all times subject to any instruction or directions from Gebhart in regard thereto.
Although the right-of-control test is the most important single consideration, it is not, however, an exclusive test — other relevant factors are also to be considered. (Snedden v. Nichols, 181 Kan. 1052, 317 P. 2d 448; Snyder v. Lamb, 191 Kan. 446, 381 P. 2d 508.) A careful study of the record discloses no contract for the completion of the work or for any definite period of employment. It is clear that Gebhart could have discharged claimant, if he had chosen to do so. This is one of the indicia of a master-servant relationship. The power of an employer to terminate the employment at any time is incompatible with the full control of the work which is usually enjoyed by an independent contractor, and hence is considered as a strong circumstance tending to show the subserviency of the employee. (1 Larson, Workmen s Compensation, § 44.35, p. 654.) Furthermore, in this case it cannot be said there was an agreement as to the specified result of the work, either as a unit or as a whole, since there was no means existing independent of the will of Gebhart for determining and limiting the work to be performed.
Claimant testified that although there was no express agreement between respondent and himself concerning wages, he charged $2.50 per hour for his services. The amount of his compensation would therefore normally depend upon, not the completion of a job, but the length of time required to perform the job. The fact that a workman receives payment by the hour or day instead of by the job is indicative, though not conclusive, of an employer-employee relationship. (Larson, op cit., supra, §44.33, p. 645.)
Taking all of the circumstances of this case into account, we think there is substantial evidence in the record before us to justify the district court’s finding as it did that claimant at the time he was injured was an employee and not an independent contractor.
Other questions raised by respondent have been examined, but in view of what has been said, are found to be without substantial merit insofar as they affect the conclusions reached by the district court.
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The opinion of the court was delivered by
Fontron, J.:
On April 13, 1962, the State Board of Law Examiners commenced this proceeding to disbar Payne H. Ratner, who will sometimes be referred to as Payne, Sr., and his son, Payne H. Ratner, Jr., at times called Payne, Jr., herein, by filing against them an accusation pursuant to the provisions of G. S. 1949, 7-112 (now K. S. A. 7-112). The accusation was later amended but will be referred to in the course of this opinion as the accusation.
A brief synopsis of the events leading up to the filing of the accusation, as found by the Commissioner and disclosed by evidence of record, may be helpful in providing background and perspective. In 1954, Payne H. Ratner was appointed regional counsel for the Brotherhood of the Railroad Trainmen, and in 1957, Payne, Jr., was likewise appointed. Sometime after the appointment of Payne, Sr., his activities as regional counsel for the Brotherhood and as counsel for individual claimants under the Federal Employers’ Liability Act, became the subject of inquiry by railroad claim agents and adjusters, and their investigation was later broadened to include Payne, Jr., as well.
In March, 1961, a complaint concerning the activities of both Payne H. Ratner and Payne H. Ratner, Jr., who hereinafter will often be designated together as respondents, was lodged with the mem bers of the State Board of Law Examiners, hereafter called accusers, by a committee of the Wichita Bar Association. This complaint was referred to the attorney general for investigation. The following November the accusers, the attorney general and members of his staff, and respondents and their counsel held an informal meeting at which the respondents were given an opportunity to discuss the matters contained in the complaint. Thereafter, and on February 14, 1962, the State Board of Law Examiners resolved that an accusation in disbarment be filed against respondents and directed the attorney general to proceed therewith.
According to Payne H. Ratner’s testimony, which was not denied, he was told by the attorney general that if he would take a vacation for six months, disbarment proceedings would not be filed against him or his son. He was later told the Board of Law Examiners would not accept that type settlement but would proceed against both respondents unless he, Payne, Sr., would turn in his license with the understanding that the attorney general would not oppose his trying to get it back after a year. From the testimony of Mr. Dallas Knapp, secretary of the Board of Law Examiners, these conversations appear to have taken place without authorization from the Board. Sometime thereafter, Mr. Lloyd H. Ruppenthal, special counsel for the Board, visited the office of the respondents, at their invitation, and numerous files were made available for his inspection. Thereafter, the instant action was instituted.
After the accusation had been filed, this court appointed The Honorable Jerry E. Driscoll as Commissioner to hear the evidence and submit a report. On October 14, 1964, the Commissioner filed with the court comprehensive and detailed findings of fact and conclusions of law to which further reference will be made in the course of this opinion. We might say at this point, however, that the Commissioner found that none of the charges in the accusation were sustained by the evidence and, in conclusion, recommended that both respondents be discharged.
At the outset, it should be understood that the lengthy accusation levels no charges of fraud, dishonesty, or moral turpitude against either respondent. Neither are the charges predicated on any of the grounds for disbarment expressly enumerated in our statutes. However, we have held that the bases for revocation or suspension of an attorney’s license to practice law are not restricted to those set out in the disbarment statute. (In re Cox, 164 Kan. 160, 188 P. 2d 652.) This court, in our judgment, has inherent authority to discipline members of fhe Bar of this state whenever their conduct substantially fails to conform to the ethical standards prescribed for members of the legal profession, or whenever their activities become otherwise inimical to the just and orderly administration of law.
The gist of the charges on which the accusers now appear mainly to rely, since others were neither abstracted, briefed, nor argued, is that fhe respondents have engaged in unethical professional conduct in violation of the Canons of Professional Ethics adopted by the American Bar Association. No responsible attorney would deny that serious infractions of fhe canons are grounds for invoking disciplinary measures against offending lawyers. (Judy & Gilbert v. Railway Co., 111 Kan. 46, 49, 205 Pac. 1116; In re Gorsuch, 113 Kan. 380, 214 Pac. 794.) If the evidence in this case establishes extreme breaches of the canons, severe penalties would be warranted. We, therefore, turn to consider the specific averments contained in fhe accusation and the evidence adduced in their support.
It is only fair to say here that while frequent allusions are made herein to Payne, Sr., and Payne, Jr., collectively as “the respondents,” by far the majority of charges made in the accusation refer to Payne H. Ratner individually. The latter, in his testimony, assumed full responsibility for setting the policies and guiding the operations of the law firm of Ratner, Mattox and Ratner, in which he was senior partner. The part of Payne, Jr., in implementing the Legal Aid Plan in the Ratner office appears to have been relatively insignificant.
As analyzed by our Commissioner, the accusation comprises twelve charges, some of which overlap, or blend into each other. On oral argument of this cause, counsel for accusers roughly grouped the charges, on which they depended, into the following headings: (1) Solicitation of employment; (2) stirring up and breeding litigation; (3) division of fees with a lay agency, namely the Brotherhood of Railroad Trainmen; and (4) advancement of living expenses to clients. As they are detailed in the accusation, these are charges of grave dereliction of professional duty which must be considered within the framework of pertinent judicial decisions.
Basic to the issue of solicitation, as it must have appeared when these proceedings were brought, was the participation by the respondents in the Brotherhood’s Legal Aid Plan which was designed to assist members of the Brotherhood who had been injured while at work, or the survivors of those who had been killed. Under this plan, officers of the Brotherhood and subordinate lodges advised injured workmen, or their surviving dependents, to obtain legal advice before they settled their claims for damages against the railroads and recommended certain attorneys, usually one or more of the sixteen regional attorneys selected by the Brotherhood, as being dependable and competent to handle their personal injury or death claims.
The operation of this plan, which channeled considerable litigation to lawyers approved by the Brotherhood, appeared to many members of the Bar to constitute solicitation of legal business in violation of the canons of legal ethics which prohibit such practice. About the same time that respondents’ activities were being investigated and this action was being prepared for filing, a number of actions were commenced in other states questioning the ethics involved in the Brotherhood’s plan. No comment is required as to those cases other than to say they reflected grave concern on the part of many members of the Bar as to the propriety of the plan itself and the activities of those lawyers who were engaging in the implementation of the plan.
At this point note must be taken of the landmark case of Brotherhood of Railroad Trainmen v. Virginia, 377 U. S. 1, 84 S. Ct. 1113, 12 L. Ed. 2d 89. This was an action brought by the Virginia State Bar against the Brotherhood of Railroad Trainmen, an investigator employed by the Brotherhood, and an attorney designated its regional counsel, to enjoin them from carrying on activities which the Bar charged constituted the solicitation of legal business and the unauthorized practice of law. The judgment of the Virginia Court granting the injunction was reversed, on appeal, by the United States Supreme Court which held:
“We hold that the First and Fourteenth Amendments protect the right of the members through their Brotherhood to maintain and carry out their plan for advising workers who are injured to obtain legal advice and for recommending specific lawyers. Since the part of the decree to which the Brotherhood objects infringes those rights, it cannot stand; and to the extent any other part of the decree forbids these activities it too must fall. And, of course, lawyers accepting employment under this constitutionally protected plan have a like protection which the State cannot abridge.” (pp. 7, 8.)
This decision was not handed down until April 20, 1964, long after the present proceeding was filed, but it peremptorily removes from our consideration the propriety of the Legal Aid Plan itself, as well as the respondents’ acceptance of employment pursuant to that plan. Counsel for the accusers candidly acknowledge that the Virginia decision has appreciably narrowed the scope of permissible examination in this proceeding.
However, the instant action is not entirely disposed of by the foregoing decision for it is contended that the modus operandi of the respondents in the implementation of the Legal Aid Plan has so offended against our code of ethics that drastic action is required. It is this aspect of the case which now compels our examination of the evidence.
Before appraising the testimony and exhibits considered by our Commissioner, a few rules should be acknowledged. The burdén of proof in a proceeding of this character is greater than that required in an ordinary civil action. This view prevails generally in this country (7 Am. Jur. 2d., Attorneys at Law, § 67, pp. 89, 90; 105 A. L. R., Anno — Attorneys Misconduct — Degree of Proof, p. 984, et seq.), and has been followed in Kansas. This court, in In re Smith, 73 Kan. 743, 85 Pac. 584, has said:
“. . . Although the proceeding is not criminal, it is of such a nature, and the judgment of disbarment is so severe and so direful in its results to an attorney, that something more than a mere preponderance of proof is necessary. A judgment deprives an attorney of an office, of a means of livelihood, and to a great extent of his good name, and should only be rendered upon clear and satisfactory legal proof. . . .” (pp. 753, 754.) (See also In re Elliott, 73 Kan. 151, 84 Pac. 750.)
Although the Commissioner’s findings are not binding on this court, being advisory only, they are nonetheless, as we said in Little v. Allen, 149 Kan. 414, 415, 87 P. 2d 510, “persuasive.” In 7 C. J. S., Attorney and Client, § 37b, p. 805, the rule is stated:
“. . . However, the report and recommendations of a referee or committee, after an investigation, carry weighty presumptions of justice and propriety, and while the findings of a referee are not conclusive, they will be given the same dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where they are not against the clear weight of the evidence, or where the evidence consisted of sharply conflicting testimony.”
Where relevant, material evidence is within the control of a litigant, whose interest would naturally be served by its production, his unexplained failure to produce it permits an inference that it would be unfavorable to him. (20 Am. Jur., Evidence, § 183, pp. 188, 189, 190.) This is the rule pronounced in Fowler v. Enzenperger, 77 Kan. 406, 94 Pac. 995, in which the court held:
“As a general rule the omission by a party to produce important testimony relating to a fact of which he has knowledge and which is peculiarly within his own reach and control raises the presumption, open to explanation, of course, that the testimony, if produced, would be unfavorable to him.” (Syl. 1T 5.)
We now direct our attention to the specific complaints in the accusation. Since charges of solicitation and stirring up litigation cover much the same grounds, they will be considered together. It is said that the respondents solicited and stirred up business for themselves in three ways: First, by contacting prospective clients, either personally or through agents or through officers and members of the Brotherhood’s lodges; second, by circularizing reprints of speeches and articles and sending newsletters to subordinate lodges and their officers; and third, by means of speeches, talks, and social events at Brotherhood conventions and seminars.
The accusation lists thirty-three specific instances of direct solicitation. Of this number, it is alleged that five prospective clients were first contacted by one or the other respondent; that two were accosted by respondents’ investigators; tihat six were visited by one or the other respondent in company of other parties; that five were first contacted by other parties and then seen by respondents; and that fifteen possible clients were contacted not by the respondents but by other individuals, usually union officers and members. Examination of the record discloses that the accusers introduced no evidence to support nineteen of the alleged incidents, and abstracted evidence only as to eight of the remainder. However, we have considered all the evidence properly adduced before the Commissioner, despite the fact that not all was abstracted.
It is entirely unpractical to detail the mass of evidence relating to the alleged incidents of direct solicitation, nor is such deemed necessary. There is no doubt that Brotherhood officers and members did urge their injured brothers, and the survivors of those who had died, to seek legal advice before settling any claims and that they also recommended the Ratners. In so doing, they may have displayed greater vigor, employed more lavish language and made broader representations than was prudent or justified, or than members of the legal profession would approve, but nowhere does it appear that either one of the respondents directed, suggested or encouraged any extravagant activity on their own behalf. The recommendation of regional counsel to union members and their dependents was apparently a common practice and one contemplated by the Legal Aid Plan. Invariably the witnesses, who said they had recommended either of the Ratners, denied they had been asked to do so or had been promised or paid any consideration therefor.
With but a single exception the credible evidence discloses that initial contacts with possible claimants were made, not by the Ratners themselves, but by individuals who either knew them or knew of them as attorneys or as regional counsel. The evidence is persuasive that both respondents were quite meticulous in refusing to visit with or to contact injured trainmen, or their dependents, until they had been requested to do so.
The one exception relates to a chance encounter at a hospital where Payne H. Ratner had gone to confer with a client. Mr. Ratner was in his client’s room alone, when another patient came in to visit. In introducing himself, Mr. Ratner handed the visitor his professional card and, in the course of conversation, said that if he could ever be of service, to call on him. This may verge on solicitation, and hence may not be approved, but it can hardly be said to constitute a serious breach of ethics.
Among the incidents included in the charges of solicitation and maintenance is one alleging the encroachment by Payne, Sr., upon the employment of a fellow attorney. We would never, of course, condone behavior of this kind. The evidence is clear, however, that Mr. Ratner visited the client at her express request and was employed by her during his visit. Whatever misunderstanding arose over the employment of counsel, we believe is shown to have been the result of the client’s own lack of frankness with both the lawyers involved. Mr. Ratner’s subsequent withdrawal, after being paid for services he had already rendered, was an honorable conclusion of a conflict which in all honesty can hardly be attributed to him. The Commissioner’s finding absolving him of blameworthy conduct in this instance is well-founded.
Some of respondents’ visits with injured workmen are criticized as being premature and conducted while the injured persons were not fully competent. It may not be inappropriate for us to remark here that instances of this character undoubtedly do occur and that they are reprehensible. But we fail to find convincing evidence in this record that either respondent knowingly took advantage of anyone not fully possessed of his mental faculties.
In the most questionable case, the injured party, a Mr. Mansell, was doubtless under some medication when Payne, Sr., visited him, and his doctor testified he was in no condition to make a contract. However, the doctor also testified that Mansell was competent to break' a contract. Other evidence showed that when Mr. Ratner arrived at the hospital Mansell was in the hall playing cards with another patient, said he was glad to see Mr. Ratner, spoke rationally, asked Ratner to step into another room where they could talk, and appeared to be normal. The Commissioner was in a position to observe the witnesses and judge their credibility, and we are not disposed to disturb his finding that Mr. Mansell was not wrongfully solicited.
Counsel say that no weight was given the evidence of Payne H. Ratner, Jr., concerning the execution of an employment contract with a Mr. Clark. We have examined the evidence which pertains to that incident. It shows that Payne, Jr., upon being informed Clark wished to employ him, reluctantly handed an unsigned contract to Mr. Wilkinson, a member of the Brotherhood, to take to Clark and to return. It is unnecessary to detail all the surrounding circumstances except to say they showed much in extenuation. It is unfortunate that the incident occurred, and that Payne, Jr., did not persist in his first refusal to give Wilkinson the contract. Nevertheless, the incident was not the brazen attempt at solicitation which counsel has pictured.
We concur in the view that solicitation of legal business or engagement in “ambulance chasing,” as it is sometimes termed, impairs the reputation of the Bar, hampers the due and effective administration of justice, and is rightly prohibited by the canons of professional ethics. However, in the absence of precise definition of what constitutes solicitation, each case must be judged on its own merits. Obviously, some practices are more reprehensible than others and are clearly proscribed, while other practices are not so plainly prohibited. After combing this record, we are unable to say there is clear and convincing evidence of personal solicitation on the part of either respondent, or that either of them employed or put in motion runners, touters, or other agents to bring them clients.
It is true that two investigators were employed by the Ratner firm on separate occasions, but there is no evidence that either was employed to solicit business, or that either of them contacted prospective clients. On the contrary, the evidence is that their investigations were conducted only after the respondents had been retained. It has been held that the employment of investigators is not unethical under such circumstances and gives rise to no inference that the attorney involved is engaged in “ambulance chasing.” (In re Heirich, 10 Ill. 2d 357, 387, 140 N. E. 2d 825, 67 A. L. R. 2d 827.)
As previously indicated, members and officers of the Brotherhood and its constituent lodges have praised the legal prowess of the respondents and have highly recommended them. There is nothing essentially wrong in this unless their motivation was provided by the respondents. We are not sufficiently naive to doubt that much legal business flows into an attorney’s office because he has been recommended by friends or by clients he has successfully served. The individuals accused of touting for the respondents have denied, many of them indignantly, that they were ever importuned by the respondents to sing their praises, or that they ever expected to profit in any way by so doing. Their zeal seems to have arisen from a genuine interest in their fellow workers, not in respondents’ legal practice.
Much of the evidence introduced by the accusers was originally furnished by railroad claim agents and investigators. There is much in the record to indicate they were unfriendly, if not actively hostile, to the respondents. Some of the witnesses procured through their efforts appeared distinctly hostile to respondents and, in some instances, -unreliable. No doubt these factors weighed heavily with the Commissioner in his evaluation of the evidence. On the whole, we believe his findings on the issue- of solicitation are not open to serious complaint.
The charge of solicitation by means of pamphlets, circulars and newsletters, stems from these facts: The Ratner firm ordered, in sizeable quantity, copies of a talk given by S. C. Lush at a convention of the Brotherhood of Railroad Trainmen, and an article by T. C. Carroll, president of the Brotherhood of Maintenance of Way Employees. The Lush speech emphasized the importance of legal aid, while Carroll’s article stressed the importance to injured workmen of obtaining legal advice from competent attorneys. Neither speech, nor article, mentioned or referred in any manner to either respondent.
According to Payne, Sr., some 80 or 90 percent of the copies of the Lush speech were never distributed, but some copies were given to clients and others were furnished to local lodge officers who wished to make them available to their membership. Copies of the Carroll article were likewise given clients after they had employed the Ratner firm, many were supplied to lodge officials who wanted them for their members, and several thousand were sent to officers of the Brotherhood of Maintenance of Way Employees for distribution at conventions and meetings in Kansas and other states.
We have been furnished no more precise definition of what constitutes advertising than we have been given for solicitation. The American Bar Association Committee on Legal Ethics has interpreted Canon 27 on a case by case basis, no one of which parallels the case before us. Authoritative guideposts which might provide concrete directions are lacking. We are inclined to the view, however, that the acts shown do not amount to flagrant infractions of Canon 27, or descend to the level of self-advertisement.
We have not overlooked the proffer of the testimony of Payne H. Ratner s former private legal secretary. The Commissioner excluded her evidence on the ground it pertained to privileged communications and thus was barred by statute (G. S. 1949, 60-2805, Fourth [now K. S. A. 60-426]). This ruling is vigorously assailed as error, but we believe the point needs no extended discussion. We have examined the proffered evidence and have reached the conclusion that it would not have materially affected or substantially altered the case presented.
Although we are not now disposed to brand the distribution of the Lush talk and the Carroll article as sufficient cause to impose the drastic penalty of disbarment, we do suggest that the best traditions of our profession could more properly be served by leaving such projects to officers and lay members of the Brotherhood than by counsel themselves undertaking them. Especially would this be so if distribution be made, using the firm’s envelopes, to union officers and members at large. Repetition of such a practice should scrupulously be avoided in the future.
The newsletters, by means of which respondents are alleged to have advertised their wares, were sent to the officers of union clients represented by their firm. Several of the letters are in evidence. They contain no reference to any cases handled by the respondents. Their contents are confined to rulings of boards, commissions and courts on problems of interest to union labor, together with proposed and completed legislation important to the Brotherhood, and other items which might affect unions and their members. The respondents cite Opinion 213 of the Committee of Professional Ethics and Grievances as permitting such practice. After studying this opinion, we agree that sending of newsletters of the above type to regular clients does not offend Canon 27.
Any charge that respondents have extolled their legal virtues and accomplishments in speeches at conventions and seminars is not borne out by the evidence. While appearances were made at labor meetings — social, business and educational — and talks were given, especially by Payne, Sr., there is naught in the record to show that respondents sang their own praises or engaged in immodest behavior. The good taste of giving a cocktail party at one convention might be questioned but there is no evidence that even this particular incident was used for self-aggrandizement.
The facts concerning the charge of “fee splitting” with the Brotherhood are not seriously in dispute. In 1954, when Payne H. Ratner was appointed regional counsel, the expenses of the Legal Aid Department were divided among and paid by the several regional counsel throughout the country. The exact basis on which the allocations were made is not clear from the evidence. Since the sums varied widely from year to year — the respondents’ share ranging from $421.80 in 1955 to $2,571.15 in 1957 — it may be reasonable to assume that some relationship existed between the allocation of costs and the volume of legal business handled by each regional counsel.
According to the respondents’ testimony, payment of department expenses by legal counsel was made in return for services rendered. The legal department provided detañed reports concerning their clients’ accidents. It also furnished statistics on railroad accidents generally, and their causes; safety rules of railroad companies; reports of accidents made by the companies to the Interstate Commerce Commission; and practical advice from the department heads who had been railroad men and thus were conversant with railroad practices, equipment, terminology and working conditions.
In 1958, the Illinois Supreme Court handed down a decision in In re Brotherhood of R. R. Trainmen, 13 Ill. 2d 391, 150 N. E. 2d 163. This action had been brought by the Brotherhood seeking a declaratory judgment and requesting a ruling that certain practices in which the Brotherhood engaged were neither illegal nor unprofessional. In its opinion, the Illinois court said:
“. . . No financial connection of any ldnd between the Brotherhood and any lawyer is permissible. No lawyer can properly pay any amount whatsoever to the Brotherhood or any of its departments, officers or members as compensation, reimbursement of expenses or gratuity in connection with the procurement of a case.” (p. 398.)
Pursuant to this opinion, the respondents have paid no assessment for any year subsequent to 1958. Thus, two years in which no pay ments were made by the Ratners had elapsed before the Wichita Bar Association even lodged its complaint against them with the Board of Law Examiners, and three years had gone by without payments before the Board instituted these disbarment proceedings. Now, in the year 1965, it has been six years since the respondents have made any contributions toward the expenses of the Legal Aid Department. Incidentally, this department, we understand, has been abolished.
We believe that regardless of any improprieties which may have inhered in the respondents’ payments to the Legal Aid Department, the charge is now somewhat stale, especially since payments were discontinued after the Illinois decision came down. Prior to that decision there had been no authoritative condemnation of the precise method used in financing the Legal Aid Department, and the respondents’ prompt acquiescence in the court’s judgment negatives culpable intent on their part.
Although no statute of limitations is applicable to actions seeking disbarment, this court has recognized that charges may become so stale that it would be inequitable to act upon them. (In re Elliott, 73 Kan. 151, 84 Pac. 750.) While the charges under consideration in the Elliott case were somewhat older than the fee-splitting charge here, the principle announced in that case would seem equally applicable to the present circumstances.
The fourth general charge accuses the respondents of maintenance through the medium of providing loans to prospective clients. In this connection, the accusers have produced no evidence that either respondent advanced or loaned any money to a prospective client, or that they ever promised to malee loans in order to secure clients. One former client did testify that Payne, Sr., promised to help him arrange a loan provided the client would not break an existing contract of employment. However, his testimony was sharply disputed, and there was much in the evidence which cast doubt on his credibility. Our Commissioner found him to be unworthy of belief, and we cannot disagree with that assessment.
The evidence does show that in some instances Payne H. Ratner was able to help needy clients obtain small loans from the Wichita State Bank, of which he was a director. These loans were made on straight promissory notes signed by the clients and payment was not contingent on their recovery of damages. Despite the fact that Mr. Ratner guaranteed payment, he was not primarily liable on the notes and he was never called upon to pay a single note, or any interest thereon. All loans were fully paid by the respective makers.
Maintenance has been defined as “. . . an officious inter-meddling in a suit which in no way belongs to the intermeddler by maintaining or assisting either party to the action, with money or otherwise, to prosecute or defend it. . . .” (14 Am. Jur. 2d, Champerty and Maintenance, § 2, p. 843.) In Jahn v. Champagne Lumber Co., 157 Fed. 407, the court had this to say about maintenance:
“It has never been held violative of law or public policy to give financial aid to a poor suitor who is prosecuting a meritorious cause of action. In the absence of any bargain to share the recovery, no just criticism can attach to one offering such friendly aid. . . . The law does not tolerate the notion that a powerful defendant may force the abandonment of a suit whenever he is able to exhaust the slender means of a weak antagonist. . . .” (p. 418.)
We hardly think that what was occasionally done by Payne H. Ratner to assist clients in obtaining needed funds to tide them over can be said to fit in the category of maintenance. One of the accusers’ counsel, when queried by the Commissioner on the subject, replied that the accusers did not contend there would be anything wrong in loaning a client money so he could live until his case was tried and could get what he was entitled to rather than having to settle for much less. But he did state it would be wrong for a lawyer to set up a scheme and advertise that he would lend money to clients who came to him.
We agree with counsel’s last statement, but there is no evidence of any such a scheme in this case. There is no evidence that the respondents either advertised, or authorized anyone to state on their behalf, that loans would be secured for their clients.
It is suggested, however, that the mere bulk or number of cases in which bank loans were secured for Ratner clients creates an inference that such a scheme was in effect and that it was known by prospective clients. To buttress this claim, the accusers point out that subsistence loans were made to 67 of 312 railroad accident claimants. However, the number of railroad accident claims handled by the Ratner firm was indeed small compared to the total volume of their legal business. The number of clients obtaining loans is not impressive when compared to more than 8600 items handled during the period involved. Furthermore, we believe a dangerous precedent might be set were disbarment of a lawyer to be based on an inference so tenuous.
The accusers refer to Canon 10 of the Professional Ethics providing that a lawyer should not purchase an interest in litigation which he is conducting. We cannot agree that this canon was violated. Payment of the promissory notes signed by the clients was not made contingent on any recovery by them on their claims.
We are aware of Canon 42 which provides in substance that a lawyer may not agree with a client to bear the expenses of litigation, but may in good faith advance expenses as a matter of convenience, but subject to reimbursement. We are cognizant also of Opinion 288 which, in essence, construes expenses to mean those which result from the conduct of the litigation itself, such as court costs, witness fees, and the like. We believe a careful reading of the opinion indicates it was not intended to cover a situation like the one here, for the opinion states:
“For a lawyer to advance such living costs is similar to making an advance on account of the prospective verdict. Clearly there is no expectation of reimbursement except out of the verdict. Accordingly, a lawyer who makes such advances acquires thereby an interest in the subject matter of the litigation which he is conducting, in violation of Canon 10. . . .” (Emphasis supplied.)
As we have said, the loans in this case were made by a bank and constituted valid legal obligations of the respective makers. Liability was absolute, not contingent on the successful prosecution of the makers’ claims. These factors, we believe, distinguish this case from the situation envisioned in Opinion 288.
We would also call attention to the statement made by Mr. Henry S. Drinker in his work on Legal Ethics, where on page 95, he says: “. . . He [a lawyer] may loan money to a client but not as a regular practice. . . .” Since help in securing loans was provided in but a minute fraction of the total cases handled by respondents, we cannot say it constituted a regular practice.
Among the specific unethical actions charged in these proceedings are statements attributed to Payne H. Ratner in connection with the dismissal of an Oklahoma suit filed against the respondents and the filing by them of an action in Shawnee County, Kansas, against the Board of Bar Examiners and others for an injunction. We have examined the transcribed record relating to these incidents even though the accusers do not now press their allegations in regard thereto.
There is no substantial evidence proving that Payne, Sr., contacted newsmen to publicize either the dismissal of the Oklahoma suit or the filing of the Kansas action. Reporters may have sought him out on both occasions but he himself is not shown to have instigated the interviews. He declined to comment directly on the Kansas case, and the news release as to the Oklahoma lawsuit was properly excluded on the ground of hearsay. Even so, the latter did not appear unduly offensive.
We would agree, and indeed it was conceded by Payne H. Ratner himself, who alone appears responsible, that some unfortunate and indiscreet language was used in the pleadings filed in the Kansas action, and we would expect such language not to be repeated. But, we also have some understanding of human frailty and realize that provocation may lead to action later repented. While the use of the offensive wording is regrettable, it is understandable, and we do not consider it sufficiently malignant to justify revocation of respondents’ right to practice law.
Included in the transcript of the evidence is an impressive array of affidavits attesting to the character of the two respondents. Those relating to Payne, Sr., number well over one hundred, while those on behalf of Payne, Jr., exceed two hundred. Encompassed is the testimony of reputable and eminent members of both the bench and bar of Kansas, lawyers from other states, businessmen, doctors, clergymen, editors, educators and others. Many of those who have attested to the good repute of the respondents have held high and responsible public office and many have been prominent in the civic, business and cultural life of the state and their home communities.
We are mindful that evidence of good character and reputation is not sufficient to overcome evidence which establishes specific charges, especially where those charges involve criminality or moral turpitude. However, where accusations do not import venality, as is true in this case, or where there is conflicting evidence, which is also true here, the testimony of responsible citizens as to the reputation and character of the accused may not be wholly ignored. Evidence of such a character is entitled to consideration and must be given weight (In re Heirich, supra; In re Mason, [Mo. Ct. App.] 203 S. W. 2d 750.)
What is said in this opinion must not be interpreted as condoning the violation of the Canons of Professional Ethics. Those canons have long set the standards for ethical legal conduct and whoever assumes that this court countenances serious, willful infractions of those standards, when such have been legally established, wholly misconstrues our intent. The practice of “ambulance chasing,” by which we mean the active personal pursuit of legal business, or the solicitation of professional employment through runners, touters, or any persons acting at the behest of an attorney, is repugnant to all reputable and conscientious members of the Bar, and we join in that consensus.
Our opinion, like that of our Commissioner, goes merely to this extent: That the credible evidence fails to furnish that clear and convincing proof of substantial misconduct required in proceedings of this nature. In so saying, we do not put our stamp of approval on practices which are shoddy or questionable, even though they may not violate the letter of the law or of the canons.
Neither do we uphold the activity of claim adjusters in interviewing claimants behind the backs of their lawyers, as seems to have been done in this case. The practice of obtaining statements in the absence of known counsel is obnoxious and efforts to effect the discharge of counsel already employed are inexcusable.
Our Commissioner has found that in bringing this proceeding, the State Board of Law Examiners was not acting maliciously. In this finding, we concur. When the accusation was filed, the United States Supreme Court had not handed down its decision in Brotherhood of Railroad Trainmen v. Virginia, supra, and the ethical aspects of the Brotherhood’s legal aid program were under extensive investigation. In our judgment, no improper motive may be imputed to the Board in adopting its resolution directing this action be filed, or to the attorney general in following the Board’s directions.
This opinion has of necessity been lengthy, for the record is voluminous, the transcript and exhibits exceeding five thousand pages in all. We have attempted to cover the major aspects of the case, realizing that the problems presented are of general concern to members of the legal profession, as well as of vital importance to those directly involved.
In concluding, we hold that the findings and conclusions of our Commissioner were providently made. We concur in his conclusion that the respondents should be discharged, and it is so ordered. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from the verdict and judgment rendered in the district court on an appeal from the appraisers’ award in a condemnation case.
The appellees, Jeremiah Van Mol and Ella, his wife, owned twenty-four and one-half acres of land located in Wyandotte County, Kansas. The tract fronted on 34th Street on the west and Steele Road on the south. Four and one-half acres of the tract consisted of a building site on which were located four homes belonging to the landowners and their children, and dairy buildings, barns and a garage used in connection with the operations of a dairy. The north and adjoining twenty acres consisted of pasture land on which the dairy cattle were grazed and exercised. The appellants, the Urban Renewal Agency and the City of Kansas City, Kansas, acquired the twenty acres of pasture land by condemnation on June 1, 1962, for urban renewal purposes. Only the four and one-half acres with the buildings above described were left to the landowners.
The landowners were dissatisfied with the appraisers’ award and appealed to the District Court of Wyandotte County, Kansas. The condemners were dissatisfied with the verdict of the jury in its award to the landowners and have appealed to this court.
The appellants first contend that the trial court erroneously instructed the jury as to market value or its absence.
The jury was instructed as follows:
“In determining the reasonable market value, the jury is to consider the value of said property to its owners for their special purposes; and an owner is not required to make any pecuniary sacrifices. The owner is entitled to whatever the property is worth to him or to anyone else for any purpose to which it is adapted; this use or purpose must be real and not merely speculative or imaginary. If a particular and peculiar mode of using the land has been utilized by the landowner, he must be compensated for loss suffered by him, and it is the value which he has, and of which he is deprived, which must be made good by compensation.”
The appellant suggests:
“This instruction actually advises the jury that no matter what the reasonable market value of the premises might be; no matter what the witnesses for the condemning authority feel that the property is worth, they must give the property owners what they feel that the property is worth.”
We are forced to agree with appellant’s suggestion.
The instruction fails to inform the jury that the instruction is applicable in the absence of market value, it being contended by the landowners that there was no similar property so used from which market value could be determined. The trial court was no doubt trying to follow the rule laid down in Eisenring v. Kansas Turnpike Authority, 183 Kan. 774, 332, P. 2d 539 where we stated at page 779 as follows:
“The absence of market value, in the sense that there is a lack of evidence of comparable sales, does not prevent recovery by the owner in the event of condemnation. It occasionally happens that a parcel of real estate or a leasehold interest taken by eminent domain is of such a nature, or is held or has been improved in such a manner, that, while it serves a useful purpose to its owner, he would be unable to sell it at anything like its real value. Where the usual means of ascertaining market value are lacking, or other means must from necessity of the case be resorted to, it is proper to determine the market value by considering the intrinsic value of the property, and its valúe to the owners for their special purposes. The owner of the property taken is not required under such circumstances to make any pecuniary sacrifices. He is entitled to whatever the property is worth to him, or anyone else, for any purpose to which it is adapted. These special uses or purposes to which the property is adapted must be real — founded upon facts capable of proof — and not merely speculative or imaginary. If the owner has adopted a peculiar mode of using the land, by which he derives profit, and he is to be deprived of that use, justice requires that he be compensated for the loss to himself. It is the value which he has, and of which he is deprived, which must be made good by compensation. (4 Nicols on Eminent Domain [3rd Ed.], § 12.32, p. 133.)” (Emphasis supplied.)
The court also overlooked the following statement in the Eisenring case which was the meat of the rule:
“In the absence of market value, because the special type of property is not commonly bought and sold, resort may be had to the testimony of more specialized experts. The value of property for a special use to which it is adapted or put may be shown by persons familiar with such use, even though they are not familiar with land values generally. If a witness, by reason of. his skill, learning or technical training, understands the adaptability of the lands in question for a particular purpose and the demand for land for such purpose, he may state the market value of the land. (See 5 Nichols on Eminent Domain [3rd Ed.], § 18.41 [3], p. 160; and authorities accumulated therein.)” (p.779. Emphasis supplied.)
The rule is not to be used in “determining the reasonable market value” as stated by the lower court, but it is to be used in the “absence of market value to determine reasonable value.”
The appellants next contend that the court erred in instructing the jury as to the manner in which they should arrive at a verdict.
The court gave the following instruction:
“In arriving at your verdict in this case it is suggested that you:
“First: find the total value of the property, the 24% acres, as of immediately before June 1, 1962;
“Second: find the total value of the property, the 24% acres, as of immediately after June 1, 1962;
“Third: Subtract number two from number one, giving the value of the property taken;
“Fourth: that you find the damage to the remainder of the property not taken, if any you find;
“Fifth: then add numbers 3 and 4 to determine the amount of damage assessed against the Urban Renewal Agency in favor of the landowner.”
We must concede that it is quite impossible to determine what was meant by the instruction and the result that would have been reached had it been followed literally.
The first factor, finding the total value of all the property immediately before the taking, could have been proper. However, the second factor, finding the value of all the property immediately after the talcing, was meaningless and when subtracted from the first factor could not possibly have given the value of the property taken.
The appellants further contend that the trial court erred in the form of verdict submitted to the jury.
The form of verdict submitted to the jury, without the dollar amounts, was as follows:
“1) Total value of property before the taking: $165,381.00
“2) Total value of property after the taking: $122,381.00
“3) Value of land and improvements taken: $ 43,000.00
“4) Damage to remainder not taken: $ 25,381.00
“5) Total damages assessed: $ 68,381.00”
The form of verdict is subject to the same criticism as was the instruction just discussed.
The appellee suggests that the figures and calculations used by the jury indicate that it was not confused by the instructions; that it did arrive at a proper verdict, and therefore the verdict and judgment should not be disturbed on appeal.
We do not believe that it can be said as a matter of law that the jury was neither influenced nor confused by the instructions. There was nothing else to guide them unless they used their independent knowledge of the law of eminent domain on values.
Appellees call our attention to the rule that a verdict will not be set aside on the grounds that an instruction might have been more specific if the entire record shows that the jury was not misled. (Schuette v. Ross, 164 Kan. 432, 190 P. 2d 198.)
We do not believe the rule is applicable here. We are considering an instruction which was erroneous. The jury could not have arrived at a proper verdict unless it completely ignored the instruction and form of verdict and made its own determination of the law.
An incorrect instruction must be presumed prejudicial unless the contrary is clearly shown. An erroneous instruction, on a material issue such as we have before us, requires a reversal. (Jenkins v. United States Fire Ins. Co., 185 Kan. 665, 347 P. 2d 417; Paph v. Tri-State Hotel Co., 188 Kan. 76, 360 P. 2d 1055; Cagle Limestone Co. v. Kansas Power & Light Co., 190 Kan. 544, 376 P. 2d 809; Allen v. Ellis, 191 Kan. 311, 380 P. 2d 408.)
The judgment is reversed with instructions to grant a new trial.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Wertz, J.:
Virgil W. Akins, Sr., defendant, was charged in an information with murder as defined by G. S. 1949, 21-402, now appearing as K. S. A. 21-402. He entered a plea of guilty to murder in the second degree and was sentenced to confinement at hard labor in the state penitentiary for life under the provisions of G. S. 1949, 21-403 and 21-109, now appearing as K. S. A. 21-403 and 21-109. Except as otherwise indicated herein, all statutes will be referred to as K. S. A.
Defendant appeals from the judgment and sentence, contending only that the trial court erred in imposing a sentence of life imprisonment instead of fixing the minimum sentence of not less than ten years and a maximum of life, as provided by K. S. A. 62-2239.
The pertinent part of K. S. A. 21-403 providing the penalty for murder in the second degree reads:
“. . . Those convicted of murder in the second degree shall be punished by confinement and hard labor for not less than ten years."
and K. S. A. 21-109 provides:
“Whenever any offender is declared by law punishable, upon conviction, by confinement and hard labor for a term not less than any specified number of years, and no limit to the duration of such imprisonment or confinement is declared, the offender may be sentenced to imprisonment during his natural life, or for any number of years not less than such as are prescribed; . . .
In imposing the penalty for those convicted of murder in the second degree, the mentioned statutes are to be construed together, and the trial court may order any sentence to be imposed not less than the minimum prescribed. (Dunn v. Crouse, 192 Kan. 180, 386 P. 2d 228.)
It was held in State v. Morrow, 186 Kan. 342, 349 P. 2d 945:
“Under tire provisions of G. S. 1949, 21-109, whenever an offender is declared by law punishable, upon conviction, by confinement and hard labor for a term of not less than any specified number of years and no limit to the duration of such imprisonment or confinement is declared, he may be sentenced to imprisonment during his natural life, or for any number of years not less than such as are prescribed.” (Syl. f 3.)
See, also, State v. Fountaine, 188 Kan. 190, 360 P. 2d 1119; Fitzgerald v. Amrine, 154 Kan. 209, 117 P. 2d 582.
Defendant contends his sentence to confinement for life was imposed in violation of K. S. A. 62-2239, the pertinent provisions being:
“Whenever any person has been found guilty of a crime or offense upon verdict or plea, the court may adjudge as follows:
(5) commit the defendant to an institution ... for confinement or execution, as provided by law for the offense. . . .
“In committing a defendant to an institution, the court shall not fix a maximum term of imprisonment, but the maximum term provided by law for the offense for which the prisoner was convicted and sentenced shall apply in each case: Provided, In those cases where the law does not fix a maximum term of imprisonment for the offense for which the prisoner was convicted and sentenced, the court shall fix the maximum term of imprisonment.”
Defendant asserts the particular wording of the quoted section prohibits the trial court from sentencing him to life imprisonment for murder in the second degree, that it requires a ten-year minimum and a maximum term be set by the court, and therefore, the sentence imposed is void. Defendant’s contention is without merit. An analysis of the mentioned section refutes defendant’s contention. The statute clearly says defendant shall be committed to an institution for confinement as provided by law for the offense. In the instant case sections 21-403 and 21-109 provide the penalty for the offense of murder in the second degree. The last-mentioned statutes provide that in imposing sentence where no maximum sentence is provided, the offender may be sentenced to imprisonment during his natural life. The provisions of section 62-2239 do not conflict with, alter, or repeal directly or by implication sections 21-403 and 21-109. At no place in section 62-2239 is it required the trial court fix a minimum term of imprisonment under the facts in the instant case, nor does the section require the court to sentence a defendant in the wording of the statute as defendant contends.
The provisions of G. S. 1961 Supp., 62-2239, did authorize the trial court in its discretion to fix a minimum term of imprisonment. However, that provision was struck down in State v. O’Connor, 186 Kan. 718, 353 P. 2d 214, and in 1963 the legislature, in keeping with our decision, repassed section 62-2239 absent the objectionable language.
The penalty for murder in the second degree (21-403) is similar to certain provisions of the habitual criminal act, K. S. A. 21-107a. Under certain circumstances, both statutes provided sentences for terms not less than a definite number of years and place no limit on the confinement. This court discussed at length the application of 62-2239 to 21-107a in State v. Wood, 190 Kan. 778, 792, 378 P. 2d 536, and what was said there is applicable here.
After a careful examination of the aforementioned statutes and our decisions, we find nothing in defendant’s contentions to justify a reversal of the case or a revision of the sentence imposed. It follows that the judgment and sentence of the trial court is affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Fontron, J.:
On April 4, 1962, James Frank Burnett, the defendant and appellant herein, pleaded guilty to first-degree robbery and was sentenced to the penitentiary until released according to law. An oral motion for parole was heard and refused on the same date. Throughout the proceedings, the defendant was represented by retained counsel, Lorenzo Grant.
No motion for a new trial was filed within the statutory time, nor was notice of appeal filed within the time allowed by law. However, on April 20, 1964, more than two years after sentence, the defendant filed, per se, two motions: one for a new trial and the other to vacate the judgment for irregularities. Both motions were heard and overruled by the court on April 27, 1964, at which time the defendant was not present, either in person or by counsel, although the assistant county attorney is shown as having appeared.
The defendant, still acting pro se, filed his notice of appeal from the order overruling both motions and also filed a motion for appointment of counsel and asked leave to proceed in forma pauperis. On September 17, 1964, Mr. L. T. Grant, who is the same person as Lorenzo Grant mentioned above, was appointed to represent Burnett and shortly thereafter defendant was granted permission to proceed in forma pauperis.
Obviously, the defendant’s motion for new trial was grossly out of time and, for that reason, it was not entitled to consideration, as such. However, his motion to vacate judgment was one which the trial court could properly entertain and determine under the provisions of K. S. A. 60-1507, and our consideration of this appeal will proceed on that basis.
We find nothing in the record which, for any reason, would render the sentence imposed against the defendant subject to collateral attack under the foregoing statute. Buttressing this appraisal of the record is the statement of defendant’s counsel himself who, on oral argument, acknowledged with admirable candor and honesty that he could point to no defect which would render the sentence invalid.
The entire thrust of the defendant’s complaint in this court is directed against the sufficiency of the hearing had on his motions. His contention in this regard is threefold: First, that he was not provided counsel at the hearing; second, that a “plenary” hearing was not held; and third, that no findings of fact or conclusions of law were entered by the trial court.
So far as pertinent to the questions presented in this appeal, K. S. A. 60-1507 (b) provides as follows:
“Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the county attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. The court may entertain and determine such motion without requiring the production of the prisoner at the hearing. . . .”
On October 16, 1964, this court, in implementation of K. S. A. 60-1507, adopted Rule No. 121, which is found in 194 Kan. p. xxvn. The sections material to this appeal are as follows:
“(f) Hearing. Unless the motion and the files and records of the case conclusively show that the movant is entitled to no relief, the court shall notify the county attorney and grant a prompt hearing. ‘Prompt’ means as soon as reasonably possible considering other urgent business of the court. All proceedings on the motion shall be recorded by the official court reporter.
“(h) Presence of Prisoner. The prisoner should be produced at the hearing on a motion attacking a sentence where there are substantial issues of fact as to events in which he participated. The sentencing court has discretion to ascertain whether the claim is substantial before granting a full evidentiary hearing and requiring the prisoner to be present.
“(i) Right to Counsel. If a motion presents substantial questions of law or triable issues of fact the court shall appoint counsel to assist the movant if he is an indigent person.
“(/) Judgment. The court shall make findings of fact and conclusions of law on all issues presented.”
The plain purport of the statute, 60-1507, supra, as supplemented by our procedural Rule No. 121, is that a movant, or prisoner, be afforded a full opportunity to present whatever substantial matters can be advanced which could affect the validity of the sentence. To this end, the trial court is required to set a prompt hearing upon the motion, to appoint counsel if the movant, or prisoner, be indigent, and to see that the prisoner is produced at the hearing. These procedural steps are indispensable in the protection of a movant’s right to a fair and adequate hearing on questions of merit and substance.
The solicitude with which society, in the guise of the state, surrounds a prisoner’s right to an adequate hearing of substantial grievances does not, however, extend to the protection of trivial, frivolous or insubstantial claims. The corollary of the requirement that a full, or plenary, hearing be accorded a prisoner, when substantial questions are raised, is the court’s right to dispense with such a complete hearing and to determine the questions submitted in a more summary fashion whenever “the files and records of the case conclusively show that the movant is entitled to no relief.”
In the instant case, we believe the trial court was fully justified in deciding that the files and records conclusively revealed that Burnett was not entitled to relief. Not only does our search of the record fail to disclose any substantial grounds for relief, but the forthright admission of defendant’s counsel substantiates the absence of any substantial judiciable issue which goes to the validity of ihe sentence.
Under such circumstances, the trial judge was not required to conduct a formal plenary hearing, or to appoint counsel, or to have the movant present. We have not overlooked or ignored the oral argument of defendant’s counsel that the appearance at the hearing of Mr. Hecht, the assistant county attorney, made mandatory the appointment of counsel for Mr. Burnett. We believe the reasoning behind such an argument is fallacious. Hecht’s presence would in no way affect the record, or its contents, or what those contents revealed.
If the trial court was correct in finding that the record and files in this case conclusively showed that Burnett was entitled to no relief, it matters not whether Mr. Hecht was present or whether he was absent. We have already determined that the trial court’s finding on this point is supported by the record, and thus who may, or may not, have been present is of no moment.
The defendant’s third point, i. e., that the court failed to find and file facts and conclusions of law is negated by the record. The original journal entry was amended nunc pro tunc by including therein the following: “. . . The court finds that the files and records of this case conclusively show that the defendant, Jim Frank Burnett, is entitled to no relief and his motion is denied.” This method of correcting the record of a judgment so that it will speak the truth has long been recognized by this court as legitimate and proper. (Christisen v. Bartlett, 73 Kan. 401, 84 Pac. 530; State v. Linderholm, 90 Kan. 489, 135 Pac. 564; State v. Igo, 194 Kan. 550, 400 P. 2d 968).
Although the defendant’s motion for a new trial is not properly here for review, we have nonetheless examined its contents and discover nothing therein which vitiates the sentence imposed upon the defendant or which warrants reversal of the trial court’s judgment.
The judgment of the court below must be affirmed, and it is so ordered. | [
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The opinion of the court was delivered by
Robb, J.:
This is a will contest action. Appellants, opponents of the will, appeal from the orders of the trial court (1) adjudging the will in question to be a valid document, that it was the last will and testament of Frank C. Schneider, deceased, and was entitled to be admitted to probate and (2) from the order overruling appellants’ motion for new trial.
At the outset we must consider motions by appellants requesting this court to order the production of certain original exhibits. We have considered the necessity for the furnishing of these exhibits in this court but are of the opinion the reasons advanced are not sufficient to so require. In view of the testimony of the witnesses, we think the copies furnished are sufficient for the determination of the appeal. Therefore, such motions are this day denied.
The extensive record discloses that Frank C. Schneider died testate at Lincoln, Kansas, on December 25, 1961, and the questioned document, which is the subject of this will contest action, in its pertinent portions, provided, first, that all of decedent’s debts and funeral expenses including burial in the family lot at Tipton, Kansas, with a marker similar to others on the lot, and for mass at Tipton were to be paid. Certain real estate was bequeathed to Charles Arnoldy and James Arnoldy of Tipton. Cash bequests were made to each of the following: The Society for the Propagation of the Faith, The Roman Catholic Bishop of Reno, Nevada, The Roman Catholic Bishop of Salina, Kansas, and The Knights of Columbus, Council No. 1645. The cash balance in his bank account, all savings accounts, all time deposits, and all U. S. bonds, which were in different banks and in his safety boxes, were to be divided in three equal parts and given to St. Boniface Parish, Tipton, Kansas, Mount St. Scholastica College, Atchison, Kansas, and St. Benedict’s College, Atchison, Kansas.
All real and personal property owned by decedent in the city of Lincoln, Kansas, was bequeathed to St. Patrick Parish, Lincoln, Kansas.
Finally, decedent nominated and appointed the Reverend John J. Vandenberghe as executor of his last will and testament, without bond, and as an alternate executor, the then pastor of St. Patrick Parish, Lincoln, Kansas, was appointed to serve..
The inventory and appraisement of the estate showed it to have a value of approximately $135,752.34.
Father John J. Vandenberghe, the executor, filed an answer on behalf of the proponents of the will to the written defenses filed by the opponents.
Paul Mick, called as a witness by appellees, testified he had been a resident of Tipton, Kansas, all his life and had been an employee of the Tipton State Bank since July, 1956. At the time of the execution of the will in January, 1961, and since October, 1959, he had been cashier of the bank. Decedent, who had been known by Mick since 1920, had lived in the Tipton neighborhood until he had moved to Lincoln, Kansas, about ten years before his death. Following much solicitation on decedent’s part and over Mick’s objection because he wanted decedent to go to an attorney, Mick, after decedent had. told him what he wanted said in the will, had drawn the will in question. When decedent next came in the bank, Mick read the will to decedent and decedent stated tibe will was the way he wanted it, he was ready to sign it, but he had not brought his witnesses with him. Father John J. Vandenberghe was with decedent and he heard the conversations and was present at the placing of the signatures on the will.
Mick called in two employees of the bank as witnesses; Cecilia Streit, a bookkeeper, and Caroline Ellenz, assistant cashier. Decedent said, “These girls look honest to me,” and then told them he had his will and wished them to witness his signature thereto. A ball point pen was used because that was the only kind in the bank. Decedent then placed the executed will in his personal bank box. There were two keys to the box, one of which decedent kept in his possession, and the other the bank had in its possession. Both keys were needed to open the bank box.
Cecilia Streit, in brief, testified that she saw decedent read the will before he signed it, she saw him sign the will, and she signed as witness at decedent’s request. She saw Caroline Ellenz, the other witness, witness the will in her presence and in decedent’s presence. Mick and Father Vandenberghe were also present at the time. Decedent wore glasses but he did not have any difficulty in reading the will. Mick had called them into the room and decedent had asked them to witness his signature. Decedent took his time in writing and his signature was always slow. She was familiar with his signature and it was decedent’s signature that she witnessed at his request and in the presence of one other attesting witness. She had seen decedent’s writing quite often but had not seen him sign his name too often. He would have them make up his statement at the bank window. She saw him sign his name when making wheat loans, and had seen his writing on check stubs. She had also seen him sign his name, Frank C. Schneider, on important business matters. She further testified:
“I never read the will. I looked over it and knew it was the will. I never read the will. All I witnessed was his signature to his will.”
She also testified that decedent used only one pen in signing the will and he did not start to sign his name, Frank, more than once. No additions, interlineations of descriptions, or corrections were made to the will after it was typed and after she was called in to witness decedent’s signature. She had not seen decedent write “Fr” on the will. She did not recall anything about the “Fr” but she thought the “Fr” may have béen on the will and then crossed out just before they witnessed the will.
Caroline Ellenz testified she had been employed by the Tipton State Rank since August, 1956, and was employed by the bank on January 19, 1961, but had not been employed there since November 3, 1962. She was the other witness who signed in decedent’s presence. She saw him sign the will. Cecilia Streit, Paul Mick, and Father Vandenberghe were all present when decedent signed the will. She saw decedent read the will after she got there and she knew it was his will because he said it was his will. She had signed in the presence of Cecilia Streit, the decedent, Father Vandenberghe, and Paul Mick. She had not seen any writing on the will in handwriting until she saw decedent sign it. If some one had started to write on the line next to her signature, she would probably havé seen it. The crossing out of the “Fr” was not done in her presence. She did not think the “Fr” was- there because decedent had not signed the will before she and Cecilia Streit had come in. The will was not in the typewriter while she was in the room.
Father John Vandenberghe, a priest now of Osborne, Kansas, was in Lincoln, Kansas, at the time in question and until June 14, 1961, but at the time of decedent’s death he was living in Osborne. He had taken decedent to Tipton, Kansas, in January, 1961, and decedent had explained to him why he wanted to see Paul Mick, the banker. The witness had no interest in the will.
James Arnoldy and Charles Arnoldy, beneficiaries under the will, were with the executor, Father Vandenberghe, when delivery of the will was made to the judge of the probate court for probate on December 26, 1961, the day following decedent’s death.
Appellees rested their case and appellants introduced their evidence.
Charles Andrew Appel, Jr., a document examiner who analyzes handwriting, typewriting, and paper and ink, for evidence of authenticity or falsity, stated he received the will in question about June 30, 1962, and his examination of decedent’s signature thereon showed there were images of additional lines around the signature line and that some of them were just depressions in the paper but others contained pigment. The “n” had just one or two of such images but there were three separate and distinct lines under the black fines as the signature was written. There was an additional fine which was a depression in the paper and contained some dark blue ink. Some of the other lines were in very light blue ink. He concluded the signature in heavy lines was written over guide lines and was a forged signature. There were erasure lines including broken fibers from the use of an erasure.
F. G. Reinert, a close friend of decedent, stated that he knew decedent had had a stroke in 1958 and that decedent had worn “great big heavy glasses” and had used a magnifying glass when reading.
Clara Giersch corroborated the testimony of Reinert in regard to the heavy glasses worn by decedent and his use of a magnifying glass.
D. R. Marshall, Jr., an attorney of Lincoln, Kansas, testified that Father Vandenberghe came to his office in February, 1961, and at the priest’s request, Marshall thereafter drew a will for decedent but he had never consulted with decedent about such will.
On June 29, 1962, Lawrence J. Schneider, a nephew of decedent and an opponent of the will, took the will to a handwriting expert, William H. Quakenbush, Lawrence, Kansas, who had had thirty-eight years’ experience in examining documents. He made enlarged pictures of the will and of known signatures of decedent and concluded the signature on the will was genuine. He had made a written report to the attorney for the opponents of the will. This was as the will appeared on June 23, 1962.
Later, and on April 21, and 22, 1963, one of the attorneys for the opponents of the will again submitted the will to Quakenbush for examination, and he again took enlarged pictures thereof. The signature on the instrument was not the same as it had been in June, 1962, and he pointed out the differences. He noted differences in the little “r” in the name Frank and found a tracing indentation which appeared to have been made with a blunt instrument.
It is to be noted that while Quakenbush had seen the documents at the request of the opponents of the will, he was called as a witness for the proponents of the will.
Harry Felker, a handwriting expert with the Kansas Rureau of Investigation since 1951, testified as to certain discrepancies revealed between color slides he made of decedent’s signature on the will when he first examined the will on about March 6, 1963, and color slides he later made on May 3, 1963, and he corroborated the defects in the “r” appearing in the name Frank testified to by the witness Quakenbush.
Charles Andrew Appel, Jr., was called again in surrebuttal and testified in direct conflict to the testimony of Quakenbush.
At the close of the trial, the court made a short statement which in pertinent part reads:
“There was an allegation of undue influence or a suggestion of undue influence in the case; and the Court is of the opinion that the testimony does not sustain either of these differences to the Probate of this will. . . . The paramount question in the case [is] whether or not this will was executed by Frank C. Schneider. The court is confronted with testimony of the man at the bank, two witnesses to the will, all three of them stated without qualification that they saw Mr. Schneider execute the will. . . . But then we are confronted with testimony of experts, all of whom seem to enjoy a good reputation in their profession. And it will be up to the Court to take these exhibits, weigh them, and reach some decision as to whether or not this will was executed by Frank C. Schneider in the presence of these two witnesses; and that’s the paramount question. . . .”
Oral argument was waived and briefs were filed after the trial court took the matter under advisement.
The trial was full and complete and this court is unable to find there was such undue restriction of appellants in the cross-examination of Cecilia Streit and Caroline Ellenz, the two attesting witnesses, as to constitute reversible error. Any limitation with respect to the testimony of the experts was merely a limitation of cumulative testimony and would not merit reversal of the trial court’s judgment. So far as Paul Mick and Father Vandenberghe are concerned, the trial court chose to believe the testimony of the two attesting witnesses which was never disputed. Further, it may be noted that none of the four witnesses present at the time decedent signed his will received anything under the provisions of the will.
The trial court, after having taken the case under advisement on July 10,1963, entered the following opinion:
“The court has considered all the testimony, the briefs of counsel, exhibits, deposition and statements. The court has also had the testimony of the experts read by the Reporter and reconsidered the same.
“All parties agree that there was a dark blue ink over a light blue ink in the signature of the testator. The court has examined the will under a strong light, and with a strong magnifying glass. This fact is obvious in both instances.
“The witness that first noticed this was Mr. Appel of Washington, D. C., on or about June 30, 1962. The witness Quakenbush testified changes were made after he surrendered the will to one of the heirs at law on June 23, 1962. He further testified that when he examined the will on or prior to June 23, 1962, ‘the signature thereon was genuine’.
“The signatures of the two witnesses to the will appear in the same light blue ink as the underlying light blue ink in the signature of the testator.
“Each of the two witnesses to the will, proponent’s Exhibit One, testified that they saw the testator sign the will.
“The Court finds that the will, proponent’s Exhibit One, was executed by the testator Frank C. Schneider in the presence of the two witnesses, Cecilia Streit and Caroline Ellenz on or about January 19, 1961. That each of the two witnesses signed in his presence and in the presence of each other. That the testator read the will before signing. That he was competent and not acting under undue influence, and said act was his own free act.
“It is ordered that said will, proponent’s Exhibit One, be admitted to probate.”
Appellants filed a motion for new trial and during the hearing on the motion, the trial court heard further evidence and at the end thereof, in overruling the motion for new trial, made this statement:
“Well, the Court is a little perplexed by some of the testimony of the experts, but I am not preplexed by the testimony of the two girls that witnessed Mr. Schneider’s signature to this will. Those girls were on the witness stand, they were convincing, they were frank, they said they saw him sign the will, signed it in their presence, and there has never been any impeachment of their signature by any witnesses in this case. And the order of the Court heretofore made will stand, and the motion for a new trial will be denied.”
The trial court made the opinion of July 10,1963, above quoted, a part of its journal entry of judgment, and therein reiterated that decedent had executed the will in the presence of Cecilia Streit and Caroline Ellenz on or about January 19, 1961, that these two witnesses had signed in decedent’s presence and in the presence of each other, that decedent had read the will before signing it, that he was competent and was not acting under undue influence and this act was his own free act. The trial court again ordered the will admitted to probate. The motion for new trial was overruled on September 6,1963.
We have carefully considered all the evidence in this record which we think fairly shows this court should not, and under its previous decisions, cannot disturb the determination made by the trial court because of certain cardinal rules of law adhered to in many of our earlier cases, and more recently in the three following cases handed down on July 14,1964:
In Preston v. Preston, 193 Kan. 379, 394 P. 2d 43, it was held:
“It is not the function of this court to weigh conflicting evidence on appeal or to substitute its judgment for that of the trial court.” (Syl. ¶ 1.)
In Kramer v. Farmers Elevator Co., 193 Kan. 438, 393 P. 2d 998, the rules were stated thus:
“A general finding determines every controverted question of fact on which substantial evidence was introduced and raises a presumption that the trial court found all facts necessary to support the judgment.
“It is tlie duty of the trier of the facts, not the appellate court, to weigh conflicting evidence and the appellate court in determining the sufficiency of evidence to support findings of fact is required to view all testimony in the light most favorable to the prevailing party.
“The appellate court is not concerned with the credibility of witnesses or the weight of their testimony and the trier of the facts, not the court of appellate review, has the responsibility of determining what testimony should be believed.” (Syl. ¶¶2, 3, 4.)
In Finnell v. Patrons Co-operative Bank, 193 Kan. 354, 394 P. 2d 116, we further stated:
“Where the trial court’s findings are attacked because of insufficiency of the evidence, the power of a reviewing court begins and ends with the determination of whether there is any substantial evidence to support the findings.” (Syl. ¶1.)
Our conclusion is the trial court did not err in its judgment, which was based on substantial, competent evidence, or in its order overruling the motion for new trial.
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The opinion of the court was delivered by
Hatcher, C.:
These appeals stem from a controversy over a condemnation proceeding brought by the State Board of Regents to acquire a tract of land on behalf of the Kansas State University, Manhattan, Kansas, for engineering research.
Because of the rather complicated manner in which the appeals reached this court a chronological presentation of both the substantive and procedural facts will be helpful.
In the early spring of 1962, the Kansas State University was preparing to make application to the federal government for grants for the purpose of conducting radiation shielding and other nuclear research programs. In order to qualify for the grants it was necessary that the university show control of a tract of land on which the nuclear research programs could be conducted.
On May 3, 1962, the Kansas State University Endowment Association entered into a lease agreement with Edward F. Murray and Esther, his wife. The lease covered one hundred seventy-five acres of land adjacent to the Fort Riley Military Reservation and was for a term of five years extending to April 30,1967. The agreement also provided for an option to purchase which covered two hundred ninety acres of land, including the land under lease, for the sum of two hundred dollars per acre. The option to purchase extended to May 1,1964.
The lease and option agreement provided:
“The parties hereto understand and agree that the above described real estate will be occupied for the purpose of conducting a ‘Summer Shielding Development Program’ by the Shielding Institute which is sponsored by the Department of Nuclear Engineering at Kansas State University, Manhattan, Kansas.”
The university subsequently received a grant from the federal government. It entered into possession of the leased land under a sub-lease from the Endowment Association and erected structures for the operation of certain phases of the radiation shielding program.
On June 5, 1963, the State Board of Regents filed a petition in the District Court of Riley County for the condemnation of the land covered by the lease. The petition stated in part:
“That tlie State Board of Regents is a body created and existing by virtue of the laws of the State of Kansas and said Board is vested with the management, control and government of the Kansas State University of Agriculture and Applied Science at Manhattan, Kansas.
“That the said State Board of Regents desires to acquire in the name of the State of Kansas a certain tract and parcel of land situated in Riley County, Kansas, for engineering research for the Kansas State University of Agriculture and Applied Science, Manhattan, Kansas, consisting of 175 acres more or less. That said tract and parcel of land is described and shown of record to be owned as follows: ” (Description omitted.)
The petition was approved by the court and appraisers were appointed. On September 11, 1963, the landowners filed a motion to dismiss the condemnation proceedings stating:
“In support of their motion the defendant and land owners state and allege that the condemnor, Kansas State University of Agriculture and Applied Science, Manhattan, Kansas, requested the Kansas State University Endowment Association, a corporation, to obtain a lease and option agreement for the benefit of said Kansas State University whereunder the University could occupy certain land in connection with its Summer Shielding Development Program, and said land could be acquired by the Endowment Association for the benefit of the University for the purpose of making available said real estate for establishment of the proposed laboratory sponsored by the State Office of Civil Defense; that pursuant to said lease agreement, said Kansas State University entered into possession and occupied the premises and is still in possession and occupying said premises for the purpose of its Summer Shielding Development Program; that the land covered by said lease and option agreement is the same land the University is seeking to acquire hereunder; that said University has accepted all of the benefits accruing to it under and by virtue of said lease and option agreement and now seeks to avoid its obligations under said lease and option agreement by virtue of this condemnation action; that said University is not entitled to accept the benefits of said lease and option agreement and avoid the obligations thereof; that, in addition, as a result of the above facts and circumstances, the University is estopped to condemn said land; and that therefore this action should be dismissed.”
On September 18, 1963, the appraisers filed their report in which they appraised the value of the land taken, utilities and buildings, and severance damages at a total of $23,000. On September 30, 1963, the district court entered an order approving the appraisers’ report and denying the landowners’ motion to dismiss.
The landowners’ motion for reconsideration of the motion to dismiss was also overruled on October 7, 1963, and they appealed to this court on October 11, 1963. This appeal was number 43,836.
On October 12,1963, the landowners filed a petition for injunction seeking to have the State Board of Regents enjoined from “entering said premises, or attempting to appropriate, condemn or acquire said land in any manner inconsistent with the provisions of said option agreement. . . .” The petition stated the same grounds for relief as were stated in its motion to dismiss, which have heretofore been presented.
The State Board of Regents filed a demurrer and a motion to dismiss. The district court, with the consent of counsel for both parties, then stayed all proceedings in both cases pending a decision of this court in the appeal, numbered 43,836, from the order overruling the motion to dismiss the condemnation proceedings.
Later the landowners filed a motion for a restraining order and temporary injunction stating that the defendant was making claims to the title of the property contrary to the trial court’s stay order. On June 5, 1964, the district court overruled the motion finding it to be without merit as a matter of law and stating:
“The Court further finds that there is a substantial ground for difference of opinion concerning the controlling question of law as to whether or not the doctrine of equitable estoppel, as a matter of law, applies to the State Board of Regents of the State of Kansas or any similar body in the exercise of its rights of eminent domain or condemnation. As the identical questions of fact and law are involved in this case as are in the condemnation proceeding, case number 13,613 of this Court, which is presently on appeal to the Supreme Court of the State of Kansas the same having the docket number 43,836, an immediate appeal of this matter should be consolidated .with the above described pending appeal if the Supreme Court should see fit to so consolidate as such an immediate appeal will materially advance the ultimate termination of the litigation of this case and will resolve the controlling question of law for this matter. . . .”
The plaintiffs, the landowners, have duly perfected their appeal to this court in the injunction proceedings which has been numbered 44,018.
Counsel for the parties agree that the facts and issues are the same and that determination of the issues raised in the appeal in the injunction case will also dispose of the issues presented in the appeal from the order refusing to dismiss the condemnation proceeding.
The controlling question to be determined is whether the appellee, the State Board of Regents, is estopped from condemning the land because of the lease and escrow agreement heretofore discussed.
The appellants contend that the Kansas State University Endowment Association was acting as agent for the State Board of Regents in making the lease and option agreement, and that the acquisition of appellants’ land by condemnation is contrary to the provisions of the lease and option agreement entered into by its agent for its benefit. It follows that the basic foundation of the landowners’ claim is agency, and if there is no agency there can be no claim of estoppel. Appellants do not dispute this basic conclusion.
We are forced to conclude that the Endowment Association was not, and could not have been, acting as agent for the State Board of Regents when it entered into the opinion agreement with the appellants.
The State Board of Regents had no authority to acquire land except by condemnation under the provisions of G. S. 1949 (now K. S. A.), 76-147 and the then existing condemnation statutes. The Board has only such authority as is granted to it by the legislature. Governmental agencies are creatures of the legislature, and can exercise only such powers as are expressly conferred by law and those necessary to make effective the powers expressly conferred. (State, ex rel., v. City of Kansas City, 181 Kan. 870, 317 P. 2d 806; State, ex rel., v. City of Overland Park, 192 Kan. 654, 391 P. 2d 128). In State, ex rel., v. Regents of the University, 55 Kan. 389, 40 Pac. 656, this court in denying the Board of Regents the right to collect fees from students for use of the library because not authorized by the legislature held:
“An action in the nature of quo warranto may be maintained in the name of the state by the attorney general to oust the board of regents of the university of Kansas from the exercise of corporate powers in excess of those conferred on it by law. The board of regents is such a corporation as is subject to the control of this court in such an action.” (Syl. 1.)
At a very early date this court stated in Kansas State Agricultural College v. Hamilton, 28 Kan. 376, p. 378:
“The Kansas State Agricultural College is a state institution; it is absolutely and exclusively under the control of the state; its properties belong to the state. It is true that today the state has created the board of regents into a body corporate, but tommorow it may set aside this body corporate, and place the control of the properties in any other board or organization. No private rights intervene. It is purely and solely a matter of state and public control.”
In Hornaday v. State, 63 Kan. 499, 65 Pac. 656, we held that boards, such as the State Board of Regents, could acquire land only in the manner px-ovided by the legislature. The opinion in the above case quoted with approval from Hornaday v. State, 62 Kan. 822, 62 Pac. 329, where it is stated at page 830 of the opinion:
“. . . The rule is that, in the case of those acting on behalf of the public, there is no power to agree as to the compensation to be given to the landowner where his property is sought to be taken for public use, unless it is given by statute, either expressly or by implication. (Lewis, Em. Dom. §288.)”
The legislature has not seen fit to authorize the State Board of Regents to acquire land by negotiation and purchase, neither has the legislature seen fit to authorize the Board to negotiate options to pxxrchase, and it had no authority to do so. No doubt the Endowment Association entered into the lease and option agreement for the purpose of assisting the Kansas State University in obtaining government grants for the purpose of conducting nuclear research programs, but its assistance could not go beyond the power of the University and the State Board of Regents to act. The Endowment Association could not by agreement, or under the claim of agency, extend the power of the State Board of Regents beyond that granted by the legislature.
It necessarily results that the Endowment Association could not have legally acted as agent for the State Board of Regents in purchasing the land or in acquiring an option which it could neither legally ratify nor exercise. If the State Board of Regents is to acquire title to the land, it can be done only by condemnation.
Since no agency relationship could have existed between the Endowment Association and the State Board of Regents in the execution of the option agreement, there is no basis for applying the doctrine of equitable estoppel against the State Board of Regents in the proceedings to condemn the land in controversy.
It would appear that the lease and option agreement anticipated condemnation proceedings by the state or its agencies. The agreement specifically provided for the disposition of the proceeds under the following conditions:
“In the event condemnation proceedings are undertaken by any agency, state, Federal or municipal, having the power of eminent domain, with the result that tire aforementioned premises are subject thereto, then, and in that event, the lessor shall be entitled tO' any award resulting from such condemnation proceedings, . . .”
What has been said renders unnecessary a determination of whether the doctrine of equitable estoppel applies to the State Board of Regents. It is also unnecessary to consider the right of appellants to appeal from the order overruling the motion to dismiss the petition for condemnation, since the issue involved in that appeal has been determined in the appeal from the order denying the temporary injunction.
The judgments of the district court are affirmed with instructions to dismiss the petition for injunction involved in appeal numbered 44,018, and to proceed, as provided by law, with the condemnation proceedings involved in appeal numbered 43,836.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Price, J.:
This is an action in habeas corpus.
The appeal is by the father from an unsuccessful attempt to gain custody of his minor child.
The background of the matter is as follows:
The plaintiff, Earl P. Turner, Jr., and the defendant, Norie Lee Melton, were formerly husband and wife. They had four minor children of tender years. On January 9, 1961, in the district court of Osage county, Oklahoma, he, as plaintiff in that action, obtained a default divorce decree and was awarded custody of the four children, one of whom was Tina Louise Turner, age six months. Plaintiff was represented by Mr. George Briggs, an attorney of Pawhuslca, Oklahoma.
Nine days later, on January 18, 1961, defendant mother, through counsel, filed a motion to set aside or modify the divorce decree alleging that she had no notice that the divorce action would be heard on January 9, and that she was a fit and proper person to have the case and custody of the minor children, and that plaintiff father was not.
In the meantime it appears that the plaintiff had taken the children to the state of Wisconsin and that they were being cared for by his stepmother.
On February 21, 1961, notice of defendant’s motion to set aside or modify the divorce decree was served on Mr. Eriggs.
On March 13,1961, defendant’s motion came on for hearing. The record shows that plaintiff appeared by Mr. Eriggs, and that defendant was present in person and by her attorney, Mr. Tillman. Defendant introduced her evidence on the question of custody. Plaintiff’s demurrer to such evidence was overruled. At the conclusion of the hearing the court rendered judgment modifying the divorce decree of January 9, by awarding custody of the four minor children to defendant. The journal entry of judgment was approved in writing by Mr. Eriggs as attorney for plaintiff, and by Mr. Tillman as attorney for defendant.
The order of March 13 granting custody to the mother was made by the district judge who presided at the divorce hearing on January 9. In the meantime it appears that the children continued to live in Wisconsin.
In 1963 defendant was married to Robert J. Melton.
In July 1963, we are advised that defendant went to Wisconsin, took the child, Tina Louise, from plaintiff’s stepmother, and brought her to Labette county, Kansas, where she and her new husband were living.
Later, plaintiff brought this action in habeas corpus in the district court of Labette county against defendant and her husband in an effort to obtain possession and custody of the child, Tina Louise, who was then three years of age. Among other things, his petition alleged that following the Oklahoma divorce in January, 1961, he had taken all four children to Wisconsin; that they had been properly cared for by him and his stepmother; that in June, 1963, he had remarried and that he and his new wife were able to provide a good home for the child Tina Louise; that defendant, his former wife, had in fact “abducted” the child and unlawfully brought her to Labette county, and that he had received no notice of the Oklahoma custody hearing in March, 1961.
The answer of defendant and her husband pleaded the Oklahoma custody order of March, 1961, alleged that plaintiff was wholly unfit to have custody of the child and that under the doctrine of “parens patriae” the court should inquire into what was for the best interests and welfare of the child as provided for by the laws of Kansas.
After full hearings conducted in September and October, 1963, at which all parties were present in person and by counsel, the district court of Labette county, on December 30, 1963, found that plaintiff father was an unsuitable person to have custody of the child and that its interests and welfare would best be served by remaining in the custody of defendant mother, who was found to be a fit and suitable person. It was further ordered that the child be kept within the jurisdiction of the court and that plaintiff have reasonable rights of visitation so long as he properly demeaned himself.
It is from this order that plaintiff has appealed.
Although the matter is approached from several different angles, plaintiff’s contentions are based chiefly upon the propositions that the order of the Oklahoma court of March 13, 1961, granting custody to defendant mother, was invalid because neither plaintiff nor the child was present or domiciled in Oklahoma at the time, that plaintiff had no notice of the hearing, and that attorney Briggs was unauthorized to appear for and represent him at the hearing; that following the divorce decree and custody order of January 9, 1961, the domicile of the child was that of plaintiff — Wisconsin—and therefore the Oklahoma court was without jurisdiction to make the order of March 13, 1961; that having unlawfully “abducted” the child from its domicile in Wisconsin defendant had no standing to claim and seek custody in the district court of Labette county, and that the valid Oklahoma order of January 9, 1961, must be given full faith and credit by the courts of this state.
We believe there are several reasons why plaintiff’s contentions may not be sustained.
Although the judgment from which this appeal is taken does not appear to have been based upon the Oklahoma order of March 13, 1961, granting custody to defendant mother, we mention briefly that order. True, plaintiff was not personally present at the hearing. He was, however, represented by attorney Briggs, who had represented him just two months earlier in the divorce case. Briggs appeared and participated at the hearing in question. He approved and signed the journal entry of judgment. On the face of things the judgment appears to be regular in all respects. The rule of Hannon v. Hannon, 186 Kan. 231, 350 P. 2d 26, and related cases, relied on by plaintiff, is not applicable to the facts of the present case which arose in Oklahoma. In any event, plaintiff is not permitted to make a collateral attack on that judgment. When defendant went to Wisconsin in 1963 and secured possession of the child she was clothed with the authority of the Oklahoma court order of March 13, 1961.
Be that as it may, the child was brought to Labette county by defendant mother, and thus the court in this habeas corpus action was faced with a very practical and realistic situation. In denying plaintiff’s application for a writ the court found there had been a change in conditions, that plaintiff was unsuitable to have custody, and that the best interests and welfare of the child dictated that it should remain with defendant mother who was found to be a fit and suitable person. Aside from the practical aspects of the matter where, as here, the court had all parties, including the child, before it, there was ample authority for the court to malee the order that it did under the general theoiy and doctrine of “parens patriae,” which recognizes the right and duty of the state to step in and act for what appears to be the best interests of a child. Although factually dissimilar, the rule is well stated in Wear v. Wear, 130 Kan. 205, 224, 285, Pac. 606, 72 A. L. R. 425, where it was held:
“In a habeas corpus proceeding brought by one of the parents against the other for the custody of their child, the court has before it the question of the rights of the parties as between themselves, and also has before it, if presented by the pleadings and the evidence, the question of the interest which the state as parens patriae has to promote the best interests of the child.” (Syl. 3)
(See also In re Thompson, 178 Kan. 1, 4, 5, 282 P. 2d 440.)
Considering all of the facts in this case — including the age of the child — we know of no reason, either of law or of fact, why this judgment should be disturbed, and it is therefore affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This is a divorce action. Defendant husband has appealed from the judgment as it pertains to alimony and division of property. No complaint is made with respect to the divorce being granted to the wife.
The parties, who were in their late forties at the time of the divorce, had been married twenty-two years. They had one son who became twenty-one a few months after the divorce. The husband had worked for the Santa Fe Railway for twenty-four years and at the time of trial was employed as conductor on the extra board. The wife at the time of trial was employed by an insurance company as an audit clerk. The record established that during their married life they had accumulated very little in the way of property — so far as net assets are concerned.
The decree sets forth the property owned by the parties and the disposition made of it. Rather than attempt to summarize we quote the decree in full:
“The Court makes the following findings, orders and decision:
“1. Plaintiff is granted a divorce from the defendant on the grounds of gross neglect of duty and extreme cruelty.
“2. The Court finds that the parties have acquired the following property during the marriage relationship with valuations determined as follows:
Residential real estate value.................... 000.00 $18,
Mortgage .................................. ,142.05 14,
- $3,857.95
Household goods ............... 500.00
1960 Pontiac ................. 1,300.00
1958 Chevrolet station wagon value 500.00
Mortgage ABC Finance........ 425.00
- 75.00
Guns................................. 300.00
Total ................................................ $6,032.95
“3. Plaintiff is awarded as her separate property the residential real estate subject to the mortgage thereon — $3,857.95; household goods — $500; and the 1960 Pontiac automobile — 1,300; said items totaling $5,657.95. The plaintiff is further granted a judgment against the defendant in the sum of $17,400.00 payable at the rate of $200.00 per month beginning as of December 1, 1963. $20,000.00 of the property and judgment granted to the plaintiff is designated as permanent alimony; the remainder constitutes the plaintiff’s share in the division of property.
“4. The defendant is awarded as his separate property the 1958 Chevrolet station wagon subject to the mortgage thereon and the guns in his possession.
“5. Plaintiff is to assume and pay off the following indebtedness incurred during the marriage:
Sears ............................................. $64.91
Pacific Finance ................................... 14.00
Plaintiff’s mother................................... 300.00
“6. Defendant is to assume and pay off the following indebtedness incurred during the marriage:
Production Credit .................................. $1,500.00
Insurance loan..................................... 460.00
Dial Finance ...................................... 360.00
Best Equipment Company........................ 185.00
Clothing bill...................................... 58.00
Macys ........................................... 11.28
1963 personal property tax.......................... 111.58
“7. No custody order is made regarding the minor son of the parties; however, the defendant is ordered to pay support money for his son’s education in the total amount of $700.00 payable $400.00 on January 1, 1964, and $300.00 on March 1, 1964.
“8. It is further ordered that each party execute such instruments of conveyance as may be necessary in order to carry out the provisions of this decree.
“9. This divorce shall not become absolute nor take effect for the purpose of remarriage to any third person for a period of six months from this date.
‘TO. Plaintiff’s attorney is allowed an additional fee of $150.00, which is taxed as part of the costs, and all the costs are taxed against the defendant.
“Dated this 5th day of December, 1963.”
Counsel for defendant husband in this appeal — and who did not represent him in the trial court, vigorously contends that — all things considered — the court abused its discretion in making the award and particularly with respect to the judgment for $17,400.00 payable at the rate of $200.00 per month, and the order requiring payment of $700.00 for the son who was approaching twenty-one years of age.
With equal vigor, counsel for plaintiff wife contends the record fully sustains the alimony and division of property award and that, considering the wide latitude and discretion reposed in a trial court relative to property matters in a divorce action — the judgment should and must be upheld.
Rules applicable to alimony, division of property, and related matters in divorce actions have been stated so many times there is no occasion to repeat them here (Sowden v. Sowden, 160 Kan. 291, 160 P. 2d 653; Carlat v. Carlat, 168 Kan. 600, 602, 215 P. 2d 200, and the many cases cited in those opinions). It is not the function of this court to retry divorce cases and divide property between husband and wife. It is our function, however, to review the record for the purpose of determining whether a trial court’s findings have a factual basis in the evidence and whether its discretion in the matter of a division of property has been abused (Henry v. Henry, 171 Kan. 307, 309, 232 P. 2d 473; Goetz v. Goetz, 180 Kan. 569, 578, 306 P. 2d 167).
To detail the evidence in this case would serve no purpose whatever. We have studied the record and, taking into consideration all matters such as the age of the parties, the years they had been married, their present and future earning capacities, the value and nature of the property involved, the fact the son was in college at the time of the divorce, the indebtedness of the parties and the order made with respect to payment thereof, the ability of the husband to comply, and other matters and things naturally flowing from a divorce — have concluded that the money judgment in the amount of $17,400.00 ordered to be paid at the rate of $200.00 a month — is excessive, and should be reduced by the sum of $5,000.00 and made payable at the rate of $150.00 per month. The decree is therefore modified to the extent that the money judgment in the amount of $17,400.00 payable at the rate of $200.00 per month is reduced to the sum of $12,400.00 and is ordered to be paid at the rate of $150.00 per month. In all other respects the decree is permitted to stand.
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The opinion of the court was delivered by
Beier, J.:
This appeal by defendant Darren L. Raschke addresses whether a sentencing court must consider on the record the financial resources of a defendant and the nature of the burden that payment of a minimum fine would impose before setting the fine.
Raschke also challenges his 19-month prison sentence as unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), because it was based in part on criminal history not proved beyond a reasonable doubt to a jury. We reject this claim as controlled by our previous decision in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). It requires no further discussion.
Raschke pleaded guilty to four counts of forgery in violation of K.S.A. 21-3710(a)(l). Subsections (b)(2), (b)(3), and (b)(4) of the statute set forth fine amounts for first, second, and third or subsequent forgery convictions: For a first conviction, “a person shall be fined the lesser of the amount of the forged instrument or $500”; for a second conviction, “a person shall be fined the lesser of the amount of the forged instrument or $1000”; for a third or subsequent conviction, “a person shall be . . . fined the lesser of the amount of the forged instrument or $2,500.”
The sentencing judge imposed a total fine of $325 on Raschke’s four counts; this amount was the sum of the values of the four forged instruments involved. The defense did not object.
On appeal to our Court of Appeals, the panel affirmed the fine. We granted Raschke’s petition for review.
Preservation of Issue for Appeal
As a preliminary matter, we consider whether Raschke’s challenge to his fine is properly before this court on appeal.
Generally an issue not raised in the district court cannot be the basis for an appeal. See State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007). And we have recently emphasized the procedural bar raised by K.S.A. 60-404, which requires a contemporaneous objection to admission or exclusion of evidence by the district court in order to preserve an issue for appeal. See State v. King, 288 Kan. 333, 204 P.3d 585 (2009); State v. Ortega-Cadelan, 287 Kan. 157, 194 P.3d 1195 (2008). The absence of a defense objection to the fine at Raschke’s sentencing requires brief discussion of these rules.
Raschke’s challenge to his fine does not involve an evidentiaiy ruling. Thus the specific contemporaneous objection rule of K.S.A. 60-404 does not apply here. In addition, despite any general common-law rule that an issue must be raised for the first time in the district court to be properly preserved for appeal, we believe this case is appropriate for application of one of our recognized exceptions — for appellate issues involving purely legal questions arising on proved or admitted facts that will be finally determinative of a case. See In re Care & Treatment of Miller, 289 Kan. 218, 224-25, 210 P.3d 625 (2009).
Consideration of Defendant’s Financial Circumstances in Setting Minimum Fine
Raschke argues that the word “shall,” as used in K.S.A. 21-3710(b), should be read as directory rather than mandatory. He also urges us to consider and apply the language of K.S.A. 21-4607(3). Finally, he invokes the rule of lenity, which requires us to interpret ambiguous or unclear statutory provisions to benefit a criminal defendant rather than the State. See State v. Paul, 285 Kan. 658, 662, 175 P.3d 840 (2008).
The prosecution, for its part, distinguishes the statutory language at issue in Johnson from that in the forgery statute and argues that K.S.A. 21-4607(3) comes into play only when fines are discretionary or when they exceed a minimum prescribed by statute, neither being the situation in Raschke’s case.
Because the outcome of this case will rest on statutory interpretation or construction, our review is unlimited. See Higgins v. Abilene Machine, Inc., 288 Kan. 359, 361, 204 P.3d 1156 (2009). When called upon to interpret a statute, we first heed a statute’s express language, giving ordinary words their ordinary meaning. See State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007); State v. Robinson, 281 Kan. 538, 539-40, 132 P.3d 934 (2006).
“If ... a plain reading of the text of a statute yields an ambiguity or a lack of clarity, statutory construction becomes appropriate. In such circumstances, a court must move outside die text of the provision at issue and examine other evidence of legislative intent, such as legislative history, or employ additional canons of statutory construction to [determine] the legislature’s meaning.” Board of Leavenworth County Comm’rs v. Whitson, 281 Kan. 678, 685, 132 P.3d 920 (2006).
Should a statute’s meaning not be evident from its plain language, we move from interpretation to construction, employing study of legislative history, application of canons of statutory construction, and appraisal of other background constructions. See Double M. Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271-72, 202 P.3d 7 (2009). Further when examining statutes to determine legislative intent, we must consider various provisions of an act in pari materia with a view toward reconciling and bringing them into harmony if possible. See State v. Breedlove, 285 Kan. 1006, 1015, 179 P.3d 1115 (2008). In addition, we have often noted that a specific statute controls over a general statute. In re K.M.H., 285 Kan. 53, 82, 169 P.3d 1025 (2007).
“Shall” in KS.A. 21-3710(b)(2)-(4) as Mandatory or Directory
Raschke is correct that prior decisions of this court have interpreted the legislature’s use of the word “shall” in some contexts as mandatory and in other contexts as merely directory. Its meaning is not plain, and construction is required.
Legislative context and history can be crucial to the distinction between a mandatory “shall” and a directory “shall.” In Curless v. Board of County Commissioners, 197 Kan. 580, 584-88, 419 P.2d 876 (1966), we considered a provision stating that a governing body of a city “shall issue a license.” We decided the provision was mandatory because the legislature had stricken more permissive language from previous versions of the enactment.
In last June’s case of State v. Phillips, 289 Kan. 28, 210 P.3d 93 (2009), we examined arguments by criminal defendants that docket fees, booking fees, Board of Indigents’ Defense Services (BIDS) attorney fees, and BIDS application fees required certain findings as well as announcement in open court in the presence of the defendants. The defendants made both statutory arguments under K.S.A. 22-3405 (defendant “shall” be present at imposition of sentence) and K.S.A. 22-3424(a) (judgment “shall” be rendered in open court) and a constitutional due process argument. We rejected the statutory arguments, ruling that none of the fees at issue were part of the sentence and that K.S.A. 22-3803 specifically dealt with parties’ notification of taxation of costs and allowed notice outside of open court. 289 Kan. at 39-40. On the due process argument, however, we remanded part of the case for findings to be made by the district court because we noted the distinction between mandatory docket and booking fees on the one hand and discretionary BIDS attorney and application fees on the other. We observed that the legislature permitted the court to set the attorney fee after considering the defendant’s finances, see K.S.A. 21-4603d(i); State v. Robinson, 281 Kan. 538, 546-47, 132 P.3d 934 (2006); and that the legislature permitted the application fee to be waived, see K.S.A. 22-4529; K.S.A. 21-4603d(a)(9). 289 Kan. at 42-43. In other words, even though K.S.A. 22-3803 provided that the court “shall” tax costs other statutory provisions demonstrated that some costs were mandatory in existence and amount and others dependent upon court evaluation and decision. Although Phillips did not focus explicitly on the mandatory/directory dichotomy, it treated a statutory “shall” as directory because of the discretionary effect of other provisions.
Unfortunately, we have no such guidance on K.S.A. 21-3710(b)(2)-(4). See L. 1969, ch. 180, sec. 21-3710 (enacting K.S.A. 21-3710); L. 2001, ch. 186, sec. 1 (mandating a minimum fine for each forgery conviction); 2001 House and Senate Judiciary Committees’ notes (discussing mandatory jail time).
When we examine our precedents on the mandatory/directory dichotomy we find our first differentiation between the two possible implications of the word “shall” in Jones v. State of Kansas, ex rel. Atherby and Kingsbury, 1 Kan. *273 (1863). Then Chief Justice Nelson Cobb wrote:
“[U]nless a fair consideration of the statute shows that the legislature intended compliance with the provision in relation to the manner to be essential to the validity of the proceeding, it is to be regarded as directory merely ....
“ ‘ . . . Statutory requisitions are deemed directory only when they relate to some immaterial matter, where a compliance is a matter of convenience rather than substance.’ ’’Jones, 1 Kan. at "279-81.
In the long histoiy since, we have stated that mandatory provisions deal with substance and directory provisions with form. In 1907’s Goodnough v. Webber, 75 Kan. 209, 211, 88 P. 879, for example, we observed that departure from a directory statute “ ‘will cause no injury to any person affected by it.’ ” By 1942, we had established a guideline for distinguishing a mandatory “shall” from a merely directory one:
“[I]t is a general rule that where strict compliance with the provision is essential to the preservation of the rights of parties affected and to the validity of the proceeding, the provision is mandatory, but where the provision fixes a mode of proceeding and a time within which an official act is to be done and is intended to secure order, system and dispatch of the public business, the provision is directory.” City of Hutchinson v. Ryan, 154 Kan. 751, Syl. ¶ 1, 121 P.2d 179 (1942).
See also Shriver v. Board of County Commissioners, 189 Kan. 548, 556, 370 P.2d 124 (1962) (“Generally speaking, statutory provisions directing the mode of proceeding by public officers and intended to secure order, system and dispatch in proceedings, and by a disregard of which the rights of parties cannot be injuriously affected, are not regarded as mandatory, unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated.”). As recently as 2006, we said that, while “shall” has at times been defined to be “directory, as opposed to. mandatory, the former is related to matters of mere form, not substance.” Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 132 P.3d 870 (2006) (citing Wilcox v. Billings, 200 Kan. 654, 657, 438 P.2d 108 [1968]).
In Hooper v. McNaughton, 113 Kan. 405, 214 P. 613 (1923), we added the concept of consequences for explicit noncompliance to the mix of factors to be considered in determining the import of “shall.” We said: “The distinction between mandatory and directory provisions of a statute lies in consequence of nonobservance. An act done in disobedience of a mandatory provision is void. While a directory provision should be obeyed, an act done in disobedience of it may still be valid.” 113 Kan. at 407.
We echoed this principle in 1968’s Wilcox:
“The difference between directory and mandatory statutes, where their provisions are not adhered to, is one of effect only; the legislature intends neither to be disregarded. However, violation of the former is attended with no consequences but failure to comply with the requirements of the latter either invalidates purported transactions or subjects the noncomplier to affirmative legal liabilities
“No absolute test exists by which it may be determined whether a statute is directory or mandatory. Each case must stand largely on its own facts, to be determined on an interpretation of the particular language used. Certain rules and aids to construction have been stated. The primary rule is to ascertain legislative intent as revealed by an examination of the whole act. Consideration must be given to the entire statute, its nature, its object, and the consequences which would result from construing it one way or the other. It has been said that whether a statute is directory or mandatory depends on whether the thing directed to be done is of the essence of the thing required, or is a mere matter of form. Accordingly, when a particular provision of a statute relates to some immaterial matter, as to which compliance with the statute is a matter of convenience rather than substance, or where the directions of a statute are given merely with a view to the proper, orderly, and prompt conduct of business, it is generally regarded as directory . . . where no substantial rights depend on it, no injury can result from ignoring it, and the purpose of the legislature can be accomplished in a manner other than prescribed, with substantially the same results. On the other hand, a provision relating to the essence of the thing to be done, that is, to mátters of substance, is mandatory, and when a fair interpretation of a statute, which directs acts or proceedings to be done in a certain way, shows that tire legislature intended a compliance with such provision to be essential to the validity of the act or proceeding, or when some antecedent and prerequisite conditions must exist prior to the exercise of power or must be performed before certain powers can be exercised the statute must be regarded as mandatory.” Wilcox, 200 Kan. at 657-58.
See also Paul v. City of Manhattan, 212 Kan. 381, Syl. ¶ 2, 511 P.2d 244 (1973) (provision for penalty, other consequence for noncompliance indicates mandatory provision); Griffin v. Rogers, 232 Kan. 168, 174, 653 P.2d 463 (1982) (absence of penalty for noncompliance, lack of effect on essential rights from noncompliance indicates directoiy provision).
Certain other patterns also have emerged over the years in our mandatory/discretionary cases.
For example, we have long held that “provisions for notice of the time and place of an election are mandatory,” City of Wichita v. Robb, 163 Kan. 121, 124, 179 P.2d 937 (1947), superseded by statute on other grounds as stated in State ex rel. Johnson v. Schmidt, 182 Kan. 593, 595, 322 P.2d 772 (1958); thus failure to comply with such provisions renders an election void. Baugh v. Rural High School District, 185 Kan. 123, Syl. ¶ 3, 340 P.2d 891 (1959); see also Lambert v. Unified School District, 204 Kan. 381, 383, 461 P.2d 744 (1969) (“statutory provisions for notice of a special election are mandatory”); cf. West v. Unified School District, 204 Kan. 29, 35, 460 P.2d 103 (1969) (notice of the time and place of an election are mandatory but “departures from directory provisions of the statute, did not vitiate such elections where such irregularities did not frustrate or tend to prevent the free expression of the electors’ intentions”).
We have also held that a statutory provision requiring officers to provide oral and written notice to individuals suspected of driving under the influence before administering a breath test is mandatory; failure to do so requires suppression of the test results. See State v. Bishop, 264 Kan. 717, 720, 957 P.2d 369 (1998); Meigs v. Kansas Dept. of Revenue, 251 Kan. 677, 680, 840 P.2d 448 (1992); State v. Luft, 248 Kan. 911, 811 P.2d 873 (1991); Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 755 P.2d 1337 (1988).
As the various iterations of the relevant factors have stated, provisions governing order and timing of procedures are more likely to be determined to be directory only. See Nguyen v. IBP, Inc., 266 Kan. 580, 972 P.2d 747 (1999) (statute requiring administrative law judge to issue award within 30 days from case submission); State v. Green, 260 Kan. 471, 920 P.2d 414 (1996) (statute requiring preliminaiy hearing within 10 days of first appearance); Sunflower Racing, Inc. v. Board of Wyandotte County Comm'rs, 256 Kan. 426, 885 P.2d 1233 (1994) (Board of Tax Appeals’ failure to comply with statute’s requirements that written order be signed by agency head, that findings of fact, conclusions of law be set forth “not essential to” preserving party’s appeal to district court); State v. Ratley, 253 Kan. 394, 855 P.2d 943 (1993) (statute requiring prosecuting attorney to file information in office of clerk when defendant bound over from municipal court); City of Overland Park v. Pavelcik, 248 Kan. 444, 806 P.2d 969 (1991) (“ ‘when an appellant has complied with the part of the appeal statute which requires him to take action, any subsequent procedural steps to be taken by some officer, such as a clerk or judge, are directory, not mandatory, and the review proceeding is not defeated by defects created by such officers’ ”); City of Garnett v. Zwiener, 229 Kan. 507, 625 P.2d 491 (1981) (provision for municipal judge to certify complaint, warrant, any appearance bond to district court within 10 days of filing of appeal; appeal not defeated if municipal judge fails to follow time line); State v. Costa, 228 Kan. 308, 613 P.2d 1359 (1980) (statute providing for prosecuting attorney to endorse names of all witnesses at time of filing; endorsement of additional witnesses after filing within judge’s discretion); Spalding v. Price, 210 Kan. 337, 339-40, 502 P.2d 713 (1972) (assessor’s notice of value change 2 weeks after directoiy statutory deadline); Bruffett v. State, 205 Kan. 863, 472 P.2d 206 (1970) (provision for district court to sentence defendant within 5 days of plea or jury verdict directory); State v. Brown, 205 Kan. 457, 461-62, 470 P.2d 815 (1970) (provision on return, certification directoiy under rule applicable to “ ‘statutes which direct the doing of a thing within a certain time without any negative words restraining the doing of it afterwards’ ”); State v. Nelson, 200 Kan. 411, 413-14, 436 P.2d 885 (1968) (time limit for imposition of sentence after denial of motion for new trial); In re L.C.W., 42 Kan. App. 2d 293, 297, 211 P.3d 829 (2009) (failure to issue adjudication in child in need of care proceeding within 60 days not fatal; “shall” in K.S.A. 2008 Supp. 38-225l[c] directory only).
“Shall” provisions affecting a party’s rights are more likely to be seen as mandatory. See State v. Deavers, 252 Kan. 149, 167-68, 843 P.2d 695 (1992) (late notice in violation of statute would prejudice defendant); Griffin, 232 Kan. at 174 (mandatory requirement essential to preserve rights of parties).
Several of our most recent cases have treated “shall” as a land of trigger to a default reading as substantive or mandatory. See State v. Andelt, 289 Kan. 763, 771-73, 217 P.3d 976 (2009); State v. Bee, 288 Kan. 733, 738-39, 207 P.3d 244 (2009) (citing State v. Drayton, 285 Kan. 689, Syl. ¶ 19, 175 P.3d 861 [2008]; State v. Robinson, 281 Kan. 538, 543, 132 P.3d 934 [2006]). However, we have still noted that the context of a statutory scheme and case law is ultimately determinative. See Bee, 288 Kan. at 739 (citing State v. Johnson, 286 Kan. 824, 850, 190 P.3d 207 [2008]); State v. Keeley, 236 Kan. 555, 560, 694 P.2d 422 (1985) (reconciling K.S.A. 21-4618, K.S.A. 21-4503). And we have been periodically careful to note that there is no absolute test to determine whether a “shall” in a statute makes the provision mandatoiy or directory.
“[T]he words mandatory and directory as applied to the construction of a particular provision in a statute are merely descriptive of the effect that it has been decided to give the provision. The mandatory ‘shall’ appears [in statutes], but that is not a hard and fast identifying mark which can foretell the character to be assigned to any statutory provision. [Citations omitted.] It can safely be said that the legislature does not intend any statutory provision to be totally disregarded. So, when the consequences of not obeying a particular statute are not prescribed by the legislature, as in the present case, the court must decide the consequences. In determining tine consequences of failure to comply with a statute, courts necessarily consider the importance of the literal and punctilious observance of the provision in question with regard to the ultimate object which the legislature sought to serve. [Citation omitted.]
“Generally in construing the effect of noncompliance with a statute, courts first inquire into the purpose behind the statutory provision.” City of Kansas City v. Board of County Commissioners, 213 Kan. 777, 783, 518 P.2d 403 (1974).
In the end, again, “[ejach case must stand largely on its own facts, to be determined on an interpretation of the particular language used.” Brown v. Wichita State University, 217 Kan. 279, 289, 540 P.2d 66 (1975), overruled on other grounds by Brown v. Wichita State University, 219 Kan. 2, 547 P.2d 1015 (1976); see also Marais des Cygnes Valley Teachers’ Ass’n v. U.S.D. No. 456, 264 Kan. 247, 250-52, 954 P.2d 1096 (1998) (reconciling K.S.A. 72-9003 with balance of act).
Raschke calls our attention in particular to Johnson, 286 Kan. at 850-51, to support his proposition that the minimum sentence prescribed in K.S.A. 21-3710 is directory. There, parties disputed K.S.A. 21-4704(e)(l), which stated: “The sentencing court has discretion to sentence at any place within the sentencing range. The sentencing judge shall select the center of the range in the usual case and reserve the upper and lower limits for aggravating and mitigating factors insufficient to warrant a departure.” (Emphasis added.) Raschke is correct; in Johnson, we held that the use of the word “shall” in K.S.A. 21-4704(e)(l) was directory. Rut Raschke fails to acknowledge that we made this decision in light of the provision’s first sentence, which provided the sentencing court had discretion to sentence a defendant at any place within the sentencing range. Thus Raschke’s argument based on Johnson is unpersuasive. The statutory provision at issue in Johnson also included clearly permissive language. The statute at issue here does not.
Given all of this background, the following factors are among those to be considered in determining whether the legislature’s use of “shall” makes a particular provision mandatory or directory: (1) legislative context and history; (2) substantive effect on a party’s rights versus merely form or procedural effect; (3) the existence or nonexistence of consequences for noncompliance; and (4) the subject matter of the statutory provision, e.g., elections or notice on charges for driving under the influence.
Moving to comparison of this list to this case, we have, as mentioned, no helpful legislative history to guide us. Our assessment of the substantive/procedural factors above militates in favor of a mandatory reading. Prescription of a minimum criminal sentence certainly is material; it is not simply a mode of procedure intended to secure order, system, and dispatch of the public business. In addition, although consequences for noncompliance are implicit rather than explicit, they are real. It appears that a forgery sentence without a fine in some amount would be illegal under K.S.A. 22-3504 and subject to vacation and correction at any time. Regarding the fourth factor, the subject matter of K.S.A. 21-3710(b)(2)-(4) is not one in which we have an established pattern in our mandatory/ directory precedents.
We are convinced here that the factors relevant in this case dictate reading the “shall” in K.S.A. 21-3710(b)(2)-(4) as mandatory rather than directory. At least the minimum fine must be imposed upon every forgery conviction.
Intersection with K. S.A. 21-4607
Having determined that the minimum fine set forth in the forgery statute, K.S.A. 21-3710(b)(2)-(4) is mandatory, we turn to how these provisions intersect with K.S.A. 21-4607(3). K.S.A. 21-4607(3) states: “In determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.” Raschke contends that the only possible path to workable harmony, see State v. Hawkins, 285 Kan. 842, 850-53, 176 P.3d 174 (2008), requires grafting K.S.A. 21-4607’s requirement for an examination of the defendant’s financial circumstances onto the forgery statute, even when the only fine being set is tire mandatory minimum. See State v. McGlothlin, 242 Kan. 437, 747 P.2d 1335 (1998). He also urges us to address two earlier Court of Appeals’ cases dealing with the mandatory minimum fine in K.S.A. 8-1567 on driving under the influence, State v. Shuster, 17 Kan. App. 2d 8, 9, 829 P.2d 925 (1992), and State v. Segovia, 19 Kan. App. 2d 493, 872 P.2d 312 (1994).
The question of how these two statutes fit together cannot be settled by reference to the plain language of their text. Neither mentions the other, and they conflict as to the mandatory minimum fines under K.S.A. 21-3710(b)(2)-(4).
We thus turn to legislative history; canons of construction; and background considerations, including the two Court of Appeals’ decisions reconciling analogous provisions.
The history of these two enactments is somewhat helpful. Both statutes were originally passed in 1969. See L. 1969, ch. 180, sec. 21-3710 (enacting K.S.A. 21-3710); L. 1969, ch. 180, sec. 21-4607 (enacting K.S.A. 21-4607). At that point, K.S.A. 21-3710 did not provide for mandatory minimum fines for first, second, and third or subsequent forgery convictions. The fine provisions were added in 2001, after four other amendments not relevant to the issue before us. See L. 2001, ch. 186, sec. 1. House and Senate committee notes from 2001 suggest that the legislature wanted to match Kansas’ forgery penalties to those from surrounding states, but the lawmakers’ discussions focused on a need for mandatoiy jail time, not mandatory fines. The notes also do not reference the overlay of K.S.A. 21-4607. See 2001 House and Senate Judiciary Committees’ notes. The language of K.S.A. 21-4607 has not changed in any relevant part since original enactment. See L. 1986, ch. 123, sec. 8 (adding “or assignment to a community correctional services program”). K.S.A. 21-3710(b)(2)-(4) is thus the newer of the two statutes and presumably the more recent statement of legislative intent. See State v. Keeley, 236 Kan. 555, 559-60, 694 P.2d 422 (1985).
Moreover, construing K.S.A. 21-3710(b)(2)-(4) as the controlling of the two statutes is consistent with our rule of construction that allows the specific to supersede the general. See Keeley, 236 Kan. at 560. K.S.A. 21-3710(b)(2)-(4) deals specifically with fines for forgery; K.S.A. 21-4607(3) deals with criminal fines generally.
Turning to the two Court of Appeals’ cases, we note that Shuster distinguished discretionary fines from mandatory fines. The panel stated: “Discretionary fines . . . are fines with set limits that a court ‘may’ impose in addition to or instead of incarceration for felonies or misdemeanors. Mandatory fines... are fines that are mandatory which ‘shall’ be imposed along with set ranges of confinement.” Because the fine imposed was greater than the statutory minimum, i.e., discretionary rather than mandatory, the panel determined that the district judge abused his discretion by failing to abide by the requirements of K.S.A. 21-4607, including subsection (3) on consideration of a defendant’s finances. Shuster, 17 Kan. App. 2d at 9-10.
Two years later, in State v. Segovia, 19 Kan. App. 2d 493, 872 P.2d 312 (1994), another panel of our Court of Appeals stated unequivocally that K.S.A. 21-4607 did not apply when a mandatory minimum fine was imposed under K.S.A. 8-1567(f). Only “ ‘[i]f the judge, in his or her discretion, imposes a fine exceeding the mandatory minimum, [must] K.S.A. 21-4607 criteria ... be taken into consideration.’ ” Segovia, 19 Kan. App. 2d at 494 (quoting Shuster, 17 Kan. App. 2d at 9).
We agree with the reasoning of Shuster and Segovia and the most recent Court of Appeals’ case examining a mandatory fine for driving under the influence and K.S.A. 21-4607, State v. Wenzel, 39 Kan. App. 2d 194, 202-03, 177 P.3d 994 (2008). In Wenzel, the panel said:
“The specific [DUI] statute here . . . has no provision allowing the district court to waive the fine, so there would be no purpose in making findings about the defendant’s ability to pay it. It is only when a court imposes more than the minimum fine . . . that the [sentencing] court is required to consider the defendant’s financial resources.” Wenzel, 39 Kan. App. 2d at 202-03.
The concept of inflexible mandatory minimum fines — which we have held K.S.A. 21-3710(b)(2)-(4) to be examples of — is incompatible with the malleability inherently injected into fine setting by consideration of defendant’s financial circumstances. Should the legislature want to resolve this conflict in favor of consideration of such circumstances when a defendant is convicted of forgery or another crime for which conviction prompts a mandatory minimum fine, it need only amend K.S.A. 21-4607 to state clearly that its subsection (3) overrides any such fine.
Rule of Lenity
Raschke’s final argument that the rule of lenity requires any statutory ambiguity to be resolved in his favor has no application. Consideration of a defendant’s financial circumstances may or may not lead to a favorable fine outcome for that defendant. When a legal argument advanced by a criminal defendant may or may not benefit all such defendants, the rhle of lenity does not compel its acceptance.
The judgment of the district court is affirmed. The judgment of the Court of Appeals is affirmed.
Johnson, J., not participating.
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The opinion of the court was delivered by
Biles, J.:
This is an appeal under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq. See L. 2009, ch. 109, sec. 23-30. Frick Farm Properties, L.P. (Frick Farm) challenges an administrative order by the Department of Agriculture Division of Water Resources (DWR) terminating a water right. Both the district court and the Court of Appeals affirmed the agency’s action. See Frick Farm Properties v. Kansas Dept. of Agriculture, 40 Kan. App. 2d 132, 190 P.3d 983 (2008). Our jurisdiction arises from K.S.A. 20-3018(b) (review of a Court of Appeals’ decision). We affirm.
For the reasons stated, we reject Frick Farm’s argument that the agency imposed an impermissible evidentiary burden during the administrative hearing where it was determined the water right was abandoned. After carefully reviewing the record, we hold the agency offered sufficient evidence in its case in chief on all three statutoiy elements required to terminate this water right under K.S.A. 2008 Supp. 82a-718(a): (1) nonuse; (2) for 5 successive years; and (3) without due and sufficient cause. Therefore, we do not decide Frick Farm’s claim that the agency improperly promulgated K.A.R. 5-7-1(d), the regulation dealing with the burden of proof on the due and sufficient cause element. We further find substantial evidence, when viewed in light of the record as a whole, supports DWR’s action.
Factual and Procedural Background
In 2002, Frick Farm acquired real property and the appurtenant water rights from Bernard J. Debes, who was an uncle of a Frick Farm principal. Prior to the purchase from Debes, Frick Farm claims it contacted DWR and was told the water right was in good standing. But after the purchase, and as part of the due diligence for a possible sale to a third party, a forfeiture issue arose as to whether Debes used his water right consistently over several years. State law provides a water right is forfeited if not used for 5 or more consecutive years without due and sufficient cause. K.S.A. 2008 Supp. 82a-718(a); Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 625, 132 P.3d 870 (2006) (“the Act creates a rule which requires holders to undertake minimal acts indicative of ownership, e.g., use, at least once every 5 years”). To explain our dispute, we must review how Debes’ water right began and describe its use or lack of use.
In 1970, Debes applied for a permit to appropriate water for beneficial use under the Kansas Water Appropriations Act of 1945. See L. 1945, ch. 390, sec. 1. The application was approved in 1972, assigned File No. 17,125, and given a March 20,1970, priority date. When approving this water right, the agency’s documentation advised Debes: (1) He must maintain records from which the quantity of water diverted each year may be determined; (2) He must furnish those records annually to the chief engineer; and (3) His failure to comply with the permit’s terms, conditions, and limitations would result in forfeiture.
In 1972, when Debes filed the notice of completed work that his permit required, he agreed to submit annually to DWR sufficient documentation showing the quantity of water actually diverted. To facilitate this reporting, DWR supplied Debes with a pumping time record book to log his irrigation activity. The agency’s documentation again advised Debes to furnish this information so it could be officially noted “to protect your right.”
Ten years later, DWR issued Debes a Certificate of Appropriation for Beneficial Use of Water, which again reminded Debes to supply his water usage documentation, with the additional admonition that his appropriation right “shall be deemed abandoned and shall terminate when without due and sufficient cause, no lawful beneficial use is made of water under this appropriation for three (3) successive years.” The law changed in 1999 to extend this time to 5 successive years. L. 1999, ch. 122, sec.l.
As reflected above, Debes knew from the time he applied for his water right in 1972 that he was expected to maintain and provide adequate annual water use documentation, which he agreed to do. In 1988, this became a statutory obligation when K.S.A. 82a-732 was enacted and began requiring water right holders to submit annual water use reports to DWR. L. 1988, ch. 395, sec. 1(a). The record reflects Debes filed water use reports from 1985 through 1991, and then again from 1996 through 2002. For the years 1992 through 1995, the agency erroneously sent reporting forms for Debes’ water right to the wrong person and Debes supplied no information on his own.
Beginning in 1990, the annual reporting forms Debes completed stated in all capital letters: “IF YOU DID NOT USE WATER, YOU MUST REPORT THE REASON FOR NON-USE TO HELP PROTECT YOUR WATER RIGHT.” With the exception of 1985 and 1998, Debes reported no water use on the annual forms applicable to any year in controversy here. Frequently, Debes gave no explanation for not using the water right, despite the administrative caution to do so, and he left that portion of the form blank.
The question whether this water right was abandoned arose in 2003 when Frick Farm considered selling some of the property it acquired from Debes. The prospective purchaser wanted verification the water right was in good standing, so Frick Farm and DWR began exchanging information to fill in gaps left by Debes’ inadequate submissions to the agency.
In October 2004, agency staff prepared a report alleging 19 consecutive years of nonuse beginning in 1985. Corrine Curran, a DWR environmental scientist, authored the report. She later testified her assignment was to determine if due and sufficient cause existed for any nonuse she discovered. To do this, she relied on four information sources: (1) the water use reports prepared by Debes and Frick Farm already on file with the agency; (2) the Farm Service Agency’s Report of Acreage identifying whether crops produced on the property were irrigated or non-irrigated; (3) the United States Department of Agriculture (ÜSDA) annual records showing what percentage of a particular crop was irrigated in the county; and (4) a March 23, 2003, letter submitted by Frick Farm, which was prepared with Debes’ assistance, justifying the nonuse, as well as supplying additional information regarding the water right. From this, Curran concluded the water right was abandoned. Her report was verified, under oath, by Bruce Falk, DWR Water Commissioner for the Stafford Field Office.
The following month, Frick Farm received notice of an administrative hearing to determine whether the water right was abandoned and should be terminated. See K.S.A. 2008 Supp. 82a-718(a). The hearing convened in March 2005. DWR’s chief engineer presided. Both the agency and Frick Farm were represented by counsel.
DWR called Curran as its only‘witness. She testified about her investigation, her professional and academic qualifications to conduct the investigation, and her conclusions. Curran said she could not ascertain due and sufficient cause for nonuse of the water right in any year since 1985 based on the reasons specified in K.A.R. 5-7-1 despite searching DWR’s files and outside information sources. The verified report was admitted into evidence, along with various other exhibits. These exhibits included DWR’s file on this water right containing all the information Debes or Frick Farm provided. The verified report was admitted without objection.
Karen Frick testified on Frick Farm’s behalf to explain the non-use for some, but not all, years in question. She claimed there was water use in 1985, 1993, and 1998. She did not dispute that water was not used in the other years. She summarized why she believed the water right was not abandoned. First, she said in years when Debes’ wheat crop froze, there was no reason to water a crop “that wasn’t there.” Second, she said in years when rainfall was adequate, there was no need to irrigate. And, third, she said in some years Debes did not irrigate because he could make more money grazing catde.
She also testified about conversations with Debes after there were questions from DWR regarding the water right’s possible abandonment. She described how Debes reliably recalled what he planted in various years and why he had not irrigated. She also explained how Frick Farm compiled information from outside sources to fill in the informational gaps and had Debes review that information. She described the exchanges with Debes in this way:
“He knew what crops he had done and why he had done what. And if he — if you didn’t need water, you didn’t use it. He was a conservationist. I mean, he was just a good farmer. He told us what crops he planted and he could tell you how many acres. And when I had gone to the ASCS office and he was correct, it was a little bit surprising to me.”
Based on what Frick Farm learned from area agricultural agencies, and the conversations with Debes, Frick Farm prepared a March 25, 2003, letter supplying rainfall amounts, crop plantings, and other information believed to be relevant. Karen Frick also testified her husband, Kent Frick, visited the DWR field office in Stafford to inquire about the water right’s status and left there believing the water right was in good standing. But Karen Frick could not say when this conversation occurred, whom he spoke with, or what he was told that caused him to believe there was no problem with the water right.
In January 2006, the chief engineer issued an initial order terminating the water right. The chief engineer concluded there were two time periods of continuous nonuse without due and sufficient cause. The first was from 1985 to 1991 — 7 years of consecutive nonuse. The second was from 1995 to 2002 — 8 years of consecutive nonuse.
Based on the above, the chief engineer summarized his conclusions from the evidentiary record as follows:
“Based on the Verified Report, which is prima facie evidence, and the testimony and evidence presented at the hearing there has been no lawful, beneficial use of water as authorized by Water Right, File No. 17,125 from 1985 through 1991 . . . and from 1995 through 2002. . . . Frick Farm Properties, L.P. has not met its burden of showing the existence of due and sufficient cause for the non-use of water in these years. Therefore, Frick Farm Properties, L.P. has failed to show that Water Right, File No. 17,125 should not be declared abandoned and terminated pursuant to K.S.A. 2004 Supp. 82a-718.”
This initial order was finalized by the Secretary of Agriculture in accordance with K.S.A. 2008 Supp. 82a-1901. Frick Farm filed two petitions for further administrative review with the Secretary of the Department of Agriculture. The second was prompted by a concern the first was procedurally defective. Both were denied.
With that, Frick Farm sought judicial review of the agency’s action in district court. We summarize Frick Farm’s arguments in those proceedings as: (1) The agency improperly placed the burden of proof on Frick Farm; (2) The agency did not establish water was not used in 1985 or 1995; (3) The agency did not establish there was no due and sufficient cause for nonuse in most of the years in question; (4) The agency improperly relied on county-wide statistical data rather than planting rates on the farm in question; (5) The agency had no statutory authority to promulgate K.A.R. 5-7-1(d); and (6) The agency failed to establish a lack of due and sufficient cause in 1990, which makes evidence of all prior years irrelevant under K.S.A. 2008 Supp. 82a-718(c).
The district court rejected each argument and upheld the agency’s termination decision. Frick Farm filed a timely appeal to the Kansas Court of Appeals, which also affirmed the termination. Frick Farm Properties, 40 Kan. App. 2d 132. Frick Farm sought review from this court, which was granted.
Analysis
Proceedings brought by the chief engineer to terminate water rights under K.S.A. 2008 Supp. 82a-718 are subject to review by the Secretary of Agriculture under the Kansas Administrative Procedure Act. K.S.A. 2008 Supp. 82a-1901(a); Hawley, 281 Kan. at 611. A final order from the Secretary is subject to judicial review under the KJRA. K.S.A. 2008 Supp. 82a-1901(b). Judicial review of a state administrative agency action is controlled by the KJRA. L. 2009, ch. 109, sec. 23-30. The KJRA defines the appropriate standard of review for this court and it enumerates eight circumstances in which a court may grant relief. K.S.A. 77-621(c). An appellate court exercises the same statutorily-limited review of an agency’s action as does the district court, i.e., as though the appeal was made directly to the appellate court. Jones v. Kansas State University, 279 Kan. 128, 139, 106 P.3d 10 (2005).
At the outset, we must comment on Frick Farm’s failure to identify which provisions in K.S.A. 77-621(c) it invokes as its grounds for relief. Such specification is important because a court reviewing an administrative agency’s action may grant relief only if it determines one or more of those provisions is violated. K.S.A. 77-621(c); Cf. Kingsley v. Kansas. Dept. of Revenue, 288 Kan. 390, 406-07, 204 P.3d 562 (2009) (“it is a better practice for the language in the petition for judicial review to mirror the statutoiy basis for the specific relief requested.”); Pittsburg State University v. Kansas Bd. of Regents, 30 Kan. App. 2d 37, 45, 36 P.3d 853 (2001), rev. denied 273 Kan. 1036 (2002) (“specificity in pleading under the KJRA is necessaiy to give focus to the asserted agency error and to give the reviewing court a proper understanding of the type of relief sought”).
Frick Farm’s failure to articulate to the district court, the Court of Appeals, or this court the statutory grounds for relief it believes are applicable to this controversy has made it much more difficult for this court to apply the facts, which bridge a 32-year time span, to Frick Farm’s various arguments sprinkled throughout the pleadings. Our review of the district court and the Court of Appeals’ decisions demonstrates those courts also labored under this debilitation. Accordingly, we will need to more expansively describe below additional facts and statutory background that appear applicable to the contentions raised in order to ensure we fulfill our obligation to the parties.
First, we distill the following principal issues from Frick Farm’s briefs: (1) whether K.A.R. 5-7-l(d) impermissibly imposed the burden of proof on Frick Farm; and (2) whether there was substantial competent evidence to support the chief engineer’s findings that there were at least two 5-year periods in which the water right was not used and there was no due and sufficient cause for that nonuse. There are subissues lurking beneath both concerns that we will address in context.
Next, we pause to detail the year-by-year evidentiary record regarding the two consecutive time periods of nonuse without due and sufficient cause found by the chief engineer because they are DWR’s factual basis for terminating Frick Farm’s water right.
1985 to 1991
During this first time period, Debes stated in his annual reports filed with DWR that he irrigated only in 1985. He also reported he planted wheat in that year. But for the other 6 years, Debes reported no water use. As importantly, for 5 of those 6 years of nonuse, he gave no reason for not using his water right. In addition, for 1986, 1987, and 1988, he did not report what, if any, crops he planted. For 1989, Debes explained on his annual report to DWR that his nonuse was because “[the] wheat froze.”
As to the water use Debes claimed in 1985, the verified report by DWR concluded Debes mistakenly attributed irrigation from another water right he held (File No. 35,112) as his use on the water right at issue, File No. 17,125. But Frick Farm argued the annual water report should be accepted on its face as the water use credited to File No. 17,125. As alternative arguments, Frick Farm claimed there was due and sufficient cause in 1985 for non-use because there was adequate rainfall for the reported wheat crop and it was more economical not to irrigate. The chief engineer disagreed with these contentions, holding:
“The evidence does not support a conclusion that irrigation occurred [in 1985], The water usage reported by Mr. Debes, 149 acre-feet, was significantly greater than the quantity authorized under File No. 17,125, but was consistent with the authorized use of water under File No. 35,112. Based on these facts, more likely than not, Mr. Debes inadvertently reported his water usage under File No. 35,112 on the line pertaining to File No. 17,125, and there was no usage of water under File No. 17,125 in 1985. This is a simple and common mistake that occurs when more than one water right is reported on a single water use report.
“Mr. Debes reported he did not irrigate [under File No. 17,125] in 1985 because he grew wheat and pastured it in the spring. This statement, alone, is not evidence of circumstances that, in fact, prevented irrigation or made irrigation unnecessary. K.A.R. 5-7-l(b). If the mere planting and pasturing of wheat prevented irrigation from occurring or made irrigation unnecessary then the obvious conclusion is that dryland wheat was planted. Making a decision to produce a crop that does not normally require full or partial irrigation did not prevent Mr. Debes from irrigating or make it possible for him to produce a normally irrigated crop without the need for irrigation. He chose not to irrigate, therefore, irrigation would not have occurred under any circumstances.
“The Fricks have offered no evidence of any circumstances that prevented Mr. Debes from irrigating or made irrigation unnecessary in 1985, although they suggest Mr. Debes grazed cattle in some years because it was more profitable than producing irrigated crops. If that is the case here, then that was an economic decision. Economic reasons are not listed in K.A.R. 5-7-l(a) as a circumstance considered as due and sufficient cause for non-use. Making a decision not to irrigate for economic reasons could not have prevented Mr. Debes from irrigating or made it possible to produce a normally irrigated crop without irrigation. Again, Mr. Debes simply chose not to irrigate, and the criteria of K.A.R. 5-7-l(b) have not been satisfied.”
As for the years 1986,1987, and 1988, Debes reported no water use, and failed to state what crop, if any, was planted. The verified report by Curran could determine no basis to find due and sufficient cause for the nonuse in these years. Frick Farm asserted the crops Debes produced in 1986 through 1988 did not require irrigation. But as to these years, the chief engineer concluded:
“The mere statement that the crops did not require irrigation provides no evidence of the existence of circumstances that prevented irrigation or made irrigation unnecessaiy. K.A.R. 5-7-l(b). In her testimony Mrs. Frick suggested rainfall was adequate in some years in which crops were not irrigated. Natural precipitation can constitute due and sufficient cause for not irrigating if crops were produced that ‘normally’ require full or partial irrigation. K.A.R. 5-7-l(a)(l). The Fricks failed to produce evidence to show what crops were produced from 1986 to 1988 and have not shown that due and sufficient cause existed. K.A.R. 5-7-l(d).”
For 1989, Debes reported no water use on his annual forms, instead stating his wheat crop froze. The verified report noted this explanation conflicts with the reason provided by Frick Farm, which contended the reason for nonuse was adequate rainfall for the crop grown that year. But in the verified report, Curran determined the conflict did not matter because under either explanation, it would be necessary to have planted an irrigated crop. She explained that USDA National Agricultural Statistics Service information showed wheat was not a normally-irrigated crop in Pawnee County in 1989 and that less than a quarter of the county’s total wheat crop was irrigated that year. Curran’s verified report concluded that adequate moisture or rainfall to produce a crop that was not normally irrigated that year was not due and sufficient cause for nonuse.
In resolving the conflict about the reason Debes’ water authority was not used in 1989, the chief engineer concluded Debes’ more contemporaneous annual report form stating his crop froze was more credible than Frick Farm’s after-the-fact claim of adequate rainfall. The chief engineer then stated:
“The mere fact the wheat crop froze is not evidence that the freeze, in fact, prevented irrigation from occurring or made irrigation unnecessary in 1989. K.A.R. 5-7-l(b). For example, if Mr. Debes planned to produce dryland wheat, no irrigation would have occurred regardless of the freeze. There simply is no evidence in the record to support a conclusion that the freeze prevented Mr. Debes from irrigating or made irrigation unnecessary, and the Fricks [have] not shown that due and sufficient cause existed. K.A.R. 5-7-l(d).”
In 1990, Debes reported no water usage on his annual report form and provided no reason for that nonuse. He also did not report what, if any, crop he planted that year. Curran’s verified report noted this lack of information and then described her unsuccessful efforts to ascertain the necessary information from other sources. Curran’s report concluded: “[I]t is not possible to determine whether a normally irrigated crop was planted and whether adequate moisture or rainfall prevented or made irrigation of this crop unnecessary.” Frick Farm asserted the crops Dehes produced in 1990 did not require irrigation because of adequate rainfall in May, June, and July, but it provided no further information about whether the crop produced normally required irrigation.
The chief engineer determined there was no factual basis to conclude due and sufficient cause existed for nonuse in 1990. In discounting Frick Farm’s explanation that the unknown crop in 1990 did not require irrigation, the chief engineer wrote: “The mere statement that the crop did not require irrigation provides no evidence of the existence of circumstances that prevented irrigation or made irrigation unnecessary.”
In 1991, Debes did not report any irrigation, nor did he report what, if any, crop was planted. Curran determined the crop planted that year was rye for grazing. She based this on records maintained by the USDA National Agricultural Statistics Service. She noted rye was not a normally-irrigated crop in Pawnee County that year. The verified report also states that information supplied by Frick Farm showed the 1991 rye crop as non-irrigated. The verified report then concludes: “[Ajdequate moisture or rainfall to produce a crop that is not normally irrigated is not considered due and sufficient cause for non-use . . . for 1991.” Frick Farm contended at the hearing that there was adequate moisture or rainfall, so irrigation was not required. The chief engineer concluded from the record:
“Making a decision to produce a dryland crop is not a circumstance that prevented Mr. Debes from irrigating or made it unnecessary to irrigate. He could have irrigated had he simply chosen to do so. Mr. Debes chose to produce crops that did not require irrigation, therefore irrigation would not have occurred under any circumstances.”
We turn next to the second period of nonuse determined by the chief engineer, from 1995 to 2002.
1995 to 2002
Before addressing these years individually, it should be noted Frick Farm argued Debes’ poor health justified nonuse for all years after 1994. The chief engineer found this was not a sufficient reason for nonuse, stating:
“Although it appears Mr. Debes’s [sic] never fully recovered his health after 1994, no evidence was presented to show it was reasonable for Mr. Debes to simply stop irrigating. For example, there was no testimony or evidence to show Mr. Debes could not have gotten help to irrigate the farm or could not have found a tenant who would irrigate after 1994.”
In 1995, as mentioned previously, there was an administrative error and DWR did not send Debes the annual reporting form for File No. 17,125. In the verified report, Curran observed Frick Farm offered supplemental information that the crop planted that year was non-irrigated and sought to excuse the nonuse by alleging there was adequate moisture. The verified report concluded: “So again, adequate moisture or rainfall to produce a crop that is not normally irrigated is not considered due and sufficient cause for non-use.”
The chief engineer agreed with the verified report’s conclusions about 1995. The chief engineer noted the Farm Service Agency’s reports for that year indicated Debes produced non-irrigated crops. Dismissing Frick Farm’s argument, the chief engineer determined no irrigation would have occurred even if rainfall was adequate to produce an irrigated crop. Thus, the chief engineer concluded, rainfall in 1995 did not prevent irrigation from occurring or make irrigation unnecessary.
For 1996, 1997, 1998, 1999, 2000, and 2001, Debes failed to report any water usage and did not provide any reason for the nonuse. He also did not identify what, if any, crop he planted. Frick Farm claimed adequate moisture justified the nonuse in all of these years. In her verified report, Curran noted the USDA National Agricultural Statistic Service’s information that either wheat or silage was planted on the property in all of these years. She concluded neither silage nor wheat was a normally irrigated crop in the county, and Frick Farm did not provide any information showing it planted an irrigated wheat or silage crop.
Based on federal Farm Service Agency reports showing Debes produced non-irrigated crops in 1996,1997,1998,1999, 2000, and 2001, the chief engineer determined Debes likely produced non- irrigated crops in those years. As a result, the chief engineer concluded no irrigation would have occurred, even if rainfall was adequate to produce an irrigated crop.
In 1998, there again was an issue as to whether Debes inaccurately reported water usage for water right File No. 35,112 under File No. 17,125. Curran reviewed this, stating in her verified report that meter reading comparisons for File No. 35,112 in 1997 and 1999 “completely match up with the information reported [under File No. 17,125] in 1998.” Curran also noted the reported acres for 1998 did not match the permit for File No. 17,125, but did match File No. 35,112. From this, the chief engineer concluded: “More likely than not, Mr. Debes did not divert water under this water right in 1998.”
For 2002, there was no water use reported on the annual form, no reason provided for the nonuse, and no declaration regarding whether a particular crop was planted. Frick Farm claimed milo was planted and argued adequate moisture made irrigation unnecessary. In her verified report, Curran noted the crop information supplied by Frick Farm indicated the milo planted was a non-irrigated crop. Curran corroborated this by referring to USDA National Agricultural Statistics Service information specific to Pawnee County, which showed less than a quarter of the county’s total milo crop was irrigated that year. The chief engineer agreed with Curran and concluded no irrigation occurred in 2002, even if rainfall was adequate to produce an irrigated crop.
With this additional detail, we can discuss Frick Farm’s arguments.
(1) Did KA.R. 5-7-l(d) impermissibly impose on Frick Farm the burden of proof?
Frick Farm mounts various attacks regarding K.A.R. 5-7-l(d) and the burden of proof it claims is required in a forfeiture hearing. Reduced to its essence, Frick Farm alleges DWR developed an administrative process for the termination of water rights under K.S.A. 2008 Supp. 82a-718 that requires the agency to do no more than show 5 or more successive years of nonuse. Frick Farm argues the water right holder is left with the entire evidentiary obligation to demonstrate there was due and sufficient cause for nonuse. Frick Farm has the burden in challenging the agency’s action on this basis. K.S.A. 77-621(a)(l) (“[t]he burden of proving the invalidity of agency action is on the party asserting invalidity”); see Trees Oil Co. v. Kansas Corporation Comm’n, 279 Kan. 209, 225-26, 105 P.3d 1269 (2005).
We find the record does not support the factual predicate for Frick Farm’s claim, so this issue is not properly presented. A discussion of the statutory framework governing the requirements for maintaining a water right, a discussion about what constitutes prima facie evidence, and a review of what the agency actually did in this case is necessary to explain our conclusion.
Under K.S.A. 82a-701(g), a “water right” is defined as follows:
“[a]ny vested right or appropriation right under which a person may lawfully divert and use water. It is a real property right appurtenant to and severable from the land on or in connection with which the water is used and such water right passes as an appurtenance with a conveyance of the land by deed, lease, mortgage, will, or other voluntary disposal, or by inheritance.”
A state may create a property right and then place conditions on the retention of that right. See Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 617, 132 P.3d 870 (2006). All water within the state of Kansas is dedicated to the use of the people of the state and is subject to control and regulation in the manner prescribed. 281 Kan. at 614.
The water right at issue here is a water appropriation right, as opposed to a vested right. The term “appropriation right” is defined in K.S.A. 82a-701(f) as being
“a right, acquired under the provisions of [the Act], to divert from a definite water supply a specific quantity of water at a specific rate of diversion, provided such water is available in excess of the requirements of all vested rights that relate to such supply and all appropriation rights of earlier date that relate to such supply, and to apply such water to a specific beneficial use or uses in preference to all appropriations right of later date.”
Once created, water appropriation rights are subject to loss or forfeiture if an owner fails to use water for a period of 5 successive years without “due and sufficient cause.” K.S.A. 2008 Supp. 82a-718(a) provides in pertinent part:
“All appropriations of water must be for some beneficial purpose. Every water right of every kind shall be deemed abandoned and shall terminate when without due and sufficient cause no lawful, beneficial use is henceforth made of water under such right for five successive years.”
As this court observed in Hawley, “it makes no real difference whether one labels ours a forfeiture statute or an abandonment statute because the legislature has clearly defined how and when the water right is terminated: by 5 successive years of unexcused nonuse.” 281 Kan. at 615.
By administrative regulation, DWR articulated over the years examples of what it finds to be due and sufficient cause for nonuse. Today, the regulation lists 10 potential justifications, including a discretionary one for case-specific circumstances when the chief engineer determines a manifest injustice would result if the water right were deemed abandoned. K.A.R. 5-7-l(a)(10). But despite the open-ended nature as to what may be a due and sufficient cause for nonuse, K.A.R. 5-7-l(b) explains that “[i]n order to constitute due and sufficient cause for nonuse of water, the reason purporting to constitute due and sufficient cause shall have in fact prevented, or made unnecessary, the authorized beneficial use of water.”
K.S.A. 2008 Supp. 82a-718(a) states further that “[t]he verified report of the chief engineer or such engineer’s authorized representative shall be prima facie evidence of the abandonment and termination of any water right.”
Against this backdrop, the interpretation of K.S.A. 2008 Supp. 82a-718(a) requires a further understanding about prima facie evidence. Looking first to the statute, we note the prima facie evidence language was included in the original statute enacted in 1945. L. 1945, ch. 390, sec. 19.
Prima facie evidence is evidence which, if left unexplained or uncontradicted, would be sufficient to sustain a judgment on the issue which it supports, but it may be contradicted by other evidence. Robbins v. City of Wichita, 285 Kan. 455, 470, 172 P.3d 1187 (2007); State v. Kriss, 232 Kan. 301, 305, 654 P.2d 942 (1982) (citing Van Brunt, Executrix v. Jackson, 212 Kan. 621, 512 P.2d 517 [1973]). It is a rule of evidence governing the sufficiency of the evidence required to submit a case to the trier of fact. Kriss, 232 Kan. at 305.
This court referenced the respective evidentiary burdens under 82a-718(a) in Hawley. The issue before the Hawley court was whether the notice provisions in 82a-718(b) were a condition precedent to water right termination. 281 Kan. at 604. But the court also discussed 82a-718(a), and while this discussion is not controlling, it is persuasive. The Hawley court observed:
“ ‘The legislature’s chosen language which follows “shall be deemed abandoned and shall terminate,” i.e., when [1] without due and sufficient cause [2] no lawful beneficial use is henceforth made of water under such right for 5 successive years’ clearly means that unless the water right holder demonstrates satisfaction of one of those two conditions at the hearing, those rights shall terminate by operation of law. In the further words of the statute, the right is then “abandoned and terminated” by declaration. See K.S.A. [2008] Supp. 82a-718(a). [Citation omitted.]’ ” (Emphasis added.) 281 Kan. at 622.
Thus, it is apparent from the statute and our decision in Hawley that at some point in the proceedings the water right holder must offer rebutting evidence on the required statutory elements pertaining to water right termination to protect the right. Under the statutory scheme, that point in time is after DWR submits a properly prepared verified report.
In 1994, DWR amended K.A.R. 5-7-l(d), establishing the evidentiary burden at the water right hearing. It stated that once the chief engineer submits a verified report establishing nonuse for 3 or more successive years the burden shifts to the water right owner to show there have not been 3 or more successive years of nonuse without due and sufficient cause. K.A.R. 1996 Supp. 5-7-l(d). It was amended again in 2004 to provide:
“When a verified report of the chief engineer, or the chief engineer’s representative, is made a matter of record at a hearing held pursuant to K.S.A. 82a-718 ... that establishes nonuse of a water right for five or more successive years, the water right owner shall have the burden of showing that there have not been five or more successive years of nonuse without due and sufficient cause.” K.A.R. 2005 Supp. 5-7-l(d).
Frick Farm objects to the regulation’s language that seemingly limits DWR’s evidentiary burden to establishing nonuse for 5 or more successive years. More specifically, Frick Farm objects to the regulation’s language requiring the water right owner to establish there have not been 5 years or more continuous nonuse without due and sufficient cause. Before the burden shifts to it, Frick Farm argues, DWR must establish a prima facie case for all three elements required to find a water right abandoned — (1) nonuse; (2) for 5 successive years; and (3) without due and sufficient cause. Frick Farm claims DWR did not establish a prima facie case as to all three elements before shifting the burden to Frick Farm to prove there was due and sufficient cause for the nonuse. Frick Farm assails the agency’s promulgation of K.A.R. 5-7-l(d) as proof that the agency did nothing more in this case but offer evidence of 5 or more years of nonuse.
The problem with Frick Farm’s argument is that we are not presented with those facts in this case. As can be seen in the detailed factual recitation above, DWR could have established non-use for 5 or more successive years just by submitting the annual water use forms prepared and filed by Debes — but DWR did not stop there. Instead, the agency took additional steps in its investigation for, and in preparation of, the verified report contemplated by K.S.A. 2008 Supp. 82a-718(a).
These steps included: (1) the DWR field office notifying Frick Farm of the nonuse problem and offering it the opportunity early in the process to supply DWR with additional information; (2) receiving from Frick Farm a March 25, 2003, letter prepared with the assistance of Debes (approximately 20 months prior to his death), which furnished supplemental information about crop planting, rainfall, and other operational details; (3) assigning Cur-ran, an environmental scientist with DWR, the task of reviewing the water right’s use, comparing those facts against all three statutory requirements, and then analyzing those facts against the applicable criteria set out in K.A.R. 5-7-l(a) to reach a conclusion regarding compliance; (4) allowing Curran to base her work on various informational sources, including the water use reports prepared by Debes and Frick Farm, federal agricultural agency records, as well as the information compiled by Frick Farms with Debes’ assistance; (5) submitting Curran’s draft report to Frick Farm for additional input before it was finalized; (6) having Curran state her conclusions and opinions based on her investigation at the hearing; and (7) having the information and opinions prepared by Curran verified under oath by DWR’s water commissioner from the local field office.
The resulting verified report, coupled with Curran’s testimony at the hearing, which was subject to cross-examination by Frick Farm’s counsel, constituted DWR’s initial evidentiary presentation. Taken as a whole, DWR’s evidence satisfied all three statutory elements necessary to justify the chief engineer’s determination that the water right was forfeited under K.S.A. 2008 Supp. 82a-718(a). DWR made this presentation before Frick Farm presented any evidence that may have disputed any claimed nonuse in any particular year or justified any nonuse by the due and sufficient causes itemized in K.A.R. 5-7-l(a).
We find the agency’s verified report established a prima facie case that no beneficial use was made of this water right for at least 5 consecutive years and that due and sufficient cause did not exist to excuse this nonuse. Whether DWR could have taken a shorter route by presenting far less evidence — focused only on nonuse for 5 or more successive years — is a hypothetical argument because the agency did not place the initial burden on Frick Farm to establish any element required to terminate Frick Farm’s water right. We decline to determine in this case, and under these circumstances, whether K.A.R. 5-7-l(d) properly states the minimum content for DWR’s verified report to serve as prima facie evidence of forfeiture under K.S.A. 2008 Supp. 82a-718(a). See Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, Syl. ¶ 2, 210 P.3d 105 (2009) (courts are constitutionally without authority to render advisory opinions); Cady v. Cady, 224 Kan. 339, 345, 581 P.2d 358 (1978) (“Courts do not render advisory opinions on abstract questions of law unless there is an actual dispute between the parties.”).
Parenthetically, we note in reviewing the Court of Appeals’ decision on this point that it did not squarely address the statutory requirements imposed on DWR to establish a prima facie case of forfeiture or whether K.A.R. 5-7-l(d) properly states the minimum content for DWR’s verified report to serve as prima facie evidence. Frick Farm, 40 Kan. App. 2d at 139. The Court of Appeals’ decision should not be read as holding that DWR may satisfy its prima facie evidence requirement by submitting a verified report that simply shows 5 or more successive years of nonuse — and nothing more. That question is not fairly presented by the facts in this case.
As mentioned above, DWR’s verified report and its evidentiary presentation addressed each of the three-statutory elements required to declare a water right forfeited under K.S.A. 2008 Supp. 82a-718(a). For these reasons, we reject Frick Farm’s challenge to the agency’s action under K.S.A. 77-621(c) on this question.
(2) Is there substantial evidence supporting the agency’s termination of Frick Farm’s water right P
Frick Farm nerd; argues DWR failed to establish a sufficient factual basis within the two time periods at issue to terminate Frick Farm’s water rights. Specifically, Frick Farm claims: (1) DWR improperly relied upon county-wide data as evidence whether a specific crop was normally irrigated; (2) There was not substantial competent evidence demonstrating nonuse in 1995; and (3) There was not substantial competent evidence demonstrating nonuse in 1990. For the reasons stated below we disagree.
The KJRA sets the standard of review on questions of fact when reviewing an agency’s actions. It allows this court to grant relief if the agency’s action is “based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole.” K.S.A. 77-621(c)(7). Substantial competent evidence possesses both relevance and substance and provides a substantial basis of fact from which the issues can be reasonably determined. Evenson Trucking Co. v. Aranda, 280 Kan. 821, 836, 127 P.3d 292 (2006). An appellate court views all the evidence in a light most favorable to the prevailing party, and it does not reweigh competing evidence or assess the credibility of witnesses. 280 Kan. at 836-37. This court must accept all evidence and inferences that support or tend to support the findings as true, and this court must disregard all conflicting evidence. Trees Oil Co., 279 Kan. at 226 (citing Reed v. Kansas Racing Comm'n, 253 Kan. 602, 609-10, 860 P.2d 684 [1993].).
(a) Was it error to consider county-wide statistical data on irrigation?
First, Frick Farm attacks some of the evidence presented by DWR, arguing the agency inappropriately relied on county-wide statistical data rather than specific planting rates on the farm in question. This argument specifically relates to those years in which water was not used because, Frick Farm claims, there was adequate moisture. K.A.R. 5-7-l(a)(l) provides that due and sufficient cause may be shown if “[a]dequate moisture is provided by natural precipitation for production of crops normally requiringfull or partial irrigation within the region of the state in which the place of use is located.” (Emphasis added.)
Frick Farm contends the county-wide agricultural information referenced in the verified report cannot demonstrate whether a particular planting on the subject property would have required irrigation. Frick Farm argues the only way this maybe conclusively shown is by proving the crop in the field was planted at a rate that required supplemental water and not simply whether a particular crop is normally irrigated within the county. For example, Frick Farm claims a farmer might plant alfalfa at a rate of 5 pounds of seed per acre if the intention is to rely exclusively on normal rainfall, but might plant at a rate of 15 to 20 pounds of seed per acre if the intent is to irrigate that crop. In this case, when Curran identified the crop planted by Debes in a particular year, she went to government agricultural records to see what percentage of that particular crop was shown as irrigated in the county for that particular year. Based on the percentage, Curran made a judgment as to whether that crop normally required full or partial irrigation to determine if K.A.R. 5-7-l(a)(l) applied.
We find Frick Farm’s argument goes more to the weight of the evidence rather than demonstrating a lack of substantial competent evidence to support the agency action. Our scope of review does not permit us to reweigh the evidence. Evenson Trucking Co., 280 Kan. at 836-37. Furthermore, prima facie evidence only requires sufficient evidence to sustain a judgment. Robbins, 285 Kan. at 470. To be sure, and irrespective of its precision to the actual property at issue, the county-wide agricultural information was certainly relevant to the application of K.A.R. 5-7-l(a)(l). Evidence is relevant if it has “any tendency in reason to prove any material fact.” K.S.A. 60-401(b).
For most years in question, Curran sought outside informational sources because Debes failed to provide even the minimal information sought on the annual water use report forms that he was required to submit to DWR by law and by his agreement with the agency. If a particular crop was planted at a rate that would normally require irrigation but irrigation was not necessary because of adequate moisture, Debes could have stated this on the form and had an obligation to do so. Regardless, if Frick Farm had evidence the crop was planted at a rate requiring irrigation, it could have argued that at the chief engineer s hearing. It failed to do this. In addition, if Frick Farm thought the failure to include this information made the verified report unreliable, it could have challenged the report’s admission into evidence. It did not.
We reject Frick Farm’s argument that the chief engineer erred by considering county-wide statistical data on which crops are normally irrigated when determining whether any of the reasons for nonuse enumerated in K.A.R. 5-7-1 apply. This evidence was relevant, and Frick Farm had the opportunity to rebut it with evidence of its planting rates. It simply failed to do so.
Next, Frick Farm attacks the factual findings in two years: 1995 and 1990.
(b) Was there substantial competent evidence of nonuse without due and sufficient cause in 1995?
In its brief, Frick Farm asserts “there is no evidence in the file that water was not used in 1995 and the lack of evidence is wholly and completely the responsibility of the agency.” Frick Farm then assails the agency’s determination, claiming: “The agency had an affirmative obligation to come forward with evidence of nonuse at some point during these proceedings and has wholly failed to do so for 1995.” It then argues the agency’s determination for this year was based on “an assumption that no water was used in 1995.”
We find this argument to be without merit. Frick Farm’s March 25, 2003, letter to DWR, which was prepared with Debes’ assistance before his death, expressly states irrigation was not used in 1995. The letter explains the acreage was planted in wheat, and then seeks to justify this admitted nonuse by arguing there was adequate rainfall to support that crop without irrigation. The letter even provides information regarding rainfall levels for May and June of that year in support of a due and sufficient cause argument for the nonuse under K.A.R. 5-7-l(a)(l). Indeed, the letter expressly states in reference to 1995 that “irrigation [was] not needed.” This is clear evidence, taken from the information supplied by the water right holder, that the authorized irrigation was not used in 1995. Based on the record, we determine that substantial competent evidence justified the chief engineer’s finding that no water was used in 1995.
(c) Was there substantial competent evidence of nonuse without due and sufficient cause in 1990?
Frick Farm next argues the agency did not have substantial competent evidence to find Debes’ nonuse in 1990 was unexcused by the factors stated in K.A.R. 5-7-l(a). As noted above, the record reflects Debes reported no water usage in 1990. He gave no reason for that nonuse on the annual report form, even though the form specifically asked him to state his reason for nonuse. In addition, Debes did not report what crop he planted that year, even though the form instructed that the reason for nonuse must be reported to protect the water right.
In the verified report, Curran noted her unsuccessful efforts to ascertain information from other sources as to what crop might have been planted. As part of the information exchange with DWR prior to preparation of the verified report, Frick Farm defended the nonuse on the basis of adequate rainfall, but did not identify the crop that was planted. The chief engineer determined there was no factual basis to conclude there was due and sufficient cause for the nonuse in 1990. The record supports the chief engineer’s determination.
The first question is what evidentiary value may be given to the fact that Debes failed to provide any explanation for his nonuse on the annual reporting forms. As noted above, in 1988, the Water Rights Appropriation Act was changed to provide as follows:
“The owner of a water right or permit to appropriate water for beneficial use, except for domestic use, shall file an annual water use report on a form prescribed by the chief engineer of the division of water resources of the state board of agriculture on or before March 1 following the end of the previous calendar year. The report shall completely and accurately set forth such water use information as requested by the chief engineer.” (Emphasis added.) L. 1988, ch. 395, sec. 1(a).
This language remains substantively unchanged. See K.S.A. 2008 Supp. 82a-732(a). Since 1990, the annual water use report form has asked water right holders whether water was used, and if not, why not. In some of his filings with the DWR, Debes formally agreed in writing to supply this information. Yet, in many instances and consistently over many years, Debes did not report this information, even though the law required it and he agreed to provide it.
We believe it is appropriate to give some weight to the fact that a water right holder consistently failed to supply any reason for nonuse on the annual report forms, particularly when: (1) The water right holder agreed to provide this information as a part of obtaining that water right; (2) The state law and regulation required the water right holder to provide this information; and (3) The water right holder is advised on the form itself in all capital letters that, “IF YOU DID NOT USE WATER, YOU MUST REPORT THE REASON FOR NON-USE TO HELP PROTECT YOUR WATER RIGHT.”
The second question is what evidentiary value to assign to the fact that neither Frick Farm nor Debes could supply the required information when asked by DWR years later. We believe it is relevant that Frick Farm and Debes did not identify the crops planted, when they knew it was an issue, and argued adequate moisture was the reason for the nonuse. Under these circumstances, and given our statutorily-limited standard of review, we find sufficient evidence in the record to conclude there was no justification for the nonuse in 1990.
Lastly, we note Frick Farm enumerated as an issue on appeal the following: “When evidence of the reasons for nonuse is not available to either party due to the death of a witness, may the evidence be presumed to have been in favor of forfeiture?” This is obviously a reference to Debes’ death in late 2004. We point this out because Frick Farm’s briefs do not specifically address this issue, other than passing references in sections of the briefs dedicated to other topics. Frick Farm also provides no legal authority in support of this identified issue.
We expect an argument identified in the issues statement of an appellate brief to be developed in a discussion section dedicated to that issue so it can be appropriately considered. This is especially true in this case, where the facts show Frick Farm worked with Debes before his death to develop responses in defense of the water right, particularly the March 25, 2003, letter to DWR. As noted above, Karen Frick even testified regarding the reliability and precision with which Debes supplied her with information. We are puzzled why Frick Farm would claim evidence of the reasons for nonuse was unavailable “to either party due to the death of a witness” when the record so clearly shows Frick Farm’s collaboration with Debes in preparing the March 25, 2003, letter, which was admitted into evidence. But without more development in Frick Farm’s briefs, we are left to conjecture.
To the extent Frick Farm desired to argue some legal point regarding an adverse impact from Debes’ death prior to the chief engineer’s hearing, we deem it waived for Frick Farm’s failure to adequately address the matter. State v. Harned, 281 Kan. 1023, 1048, 135 P.3d 1169 (2006) (claims raised in passing without argument or citation to authority are deemed waived).
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|
Per Curiam:
This case is an original, contested disciplinary action against Thomas O. Rost, who was admitted to practice law in this state on February 16,1966, but who has registered with the Kansas Supreme Court as being on retired status since October 1, 2005. The formal complaint filed by the office of the Disciplinary Administrator contained two counts, designated as Cases Nos. DA9925 and DA10014. The overarching allegation is that Rost continued to actively practice law while on retired status. See Supreme Court Rule 208(a) and (f)(1) (2008 Kan. Ct. R. Annot. 307) (attorney registered as retired not permitted to practice law in this state).
Rost’s current retired status was the result of three prior disciplinary complaints, DA8437, DA8440, and DA8946. In those cases, the Disciplinary Administrator agreed to recommend that Rost receive an informal admonishment in exchange for Rost’s agreement to retire from the practice of law by October 1, 2005. As part of a June 6, 2005, “settlement” agreement with the Disciplinary Administrator, Rost agreed to immediately begin the transition of all of his pending “cases, guardianships and conservatorships[,] and other legal business” to a Kansas licensed attorney and to file petitions to obtain court approval to resign from any active guardianships and/or conservatorships. The review committee accepted the agreement, and the Disciplinary Administrator informally admonished Rost for violating Kansas Rule of Professional Conduct (KRPC) 1.5 (2008 Kan. Ct. R. Annot. 448) (attorney fees) and KRPC 8.4 (2008 Kan. Ct. R. Annot. 586) (misconduct). Rost took retired status with the Clerk of the Appellate Courts effective October 1, 2005.
Apparently in conjunction with his “retirement,” Rost entered into an agreement to sell his “client base and files” to Eric Kjorlie, an attorney who rented office space in Rost’s law office building. The purchase price was “five times his net earnings from the 2004 practice of law,” payable solely from “the proceeds of [Rost’s] client base.” The parties agreed “to share expenses on agreed items such as copier, stamp machine, etc.” and Rost agreed to provide “administrative assistance” to Kjorlie. Kjorlie testified that, pursuant to the agreement, he retained one-half of any fee generated from Rost’s client base to utilize for expenses, giving Rost the other half as payment upon the agreement. The Disciplinary Administrator did not challenge the propriety of this agreement, and any issue in that regard is not currently before the court.
After retiring, Rost began a self-described consulting business at the same location where he had practiced law, and where he had previously been associated with his father in the practice of law. Rost changed the sign in front of the building from “Rost & Rost Attorneys at Law” to “Rost & Rost Consulting, Incorporated,” albeit there was no other Rost associated with the new business.
The count designated as case DA9925 emanated from a complaint filed with the Disciplinaiy Administrator by Shawnee County District Judge Frank Yeoman, who was presiding over certain conservatorship cases in which Rost was involved, after his retirement. The judge was particularly concerned about an April 14, 2006, letter signed by Rost, which was on “Rost & Rost Attorneys at Law” letterhead, and which explained that a delay in filing a conservatorship final accounting was due to the illness of Rost’s paralegal. The judge noted that, even after his retirement, Rost had “continued to identify himself with name and [attorney] registration number” in all of the documents filed in the conservatorship cases and that it appeared to the judge that Rost continued “to maintain the same staff, work out of the same office, and even . . . use the same letterhead identifying him as an attorney.” The judge ex pressed his concern that a client might not be able to discern that Rost was no longer permitted to actively practice law.
The count designated DA10014 arose from a complaint letter from James G. Chappas, a Kansas attorney hired by Mr. David Lloyd to find out what Rost had done to earn the fees Lloyd had paid to Rost. Chappas was unable to obtain an itemization and documentation of the work performed for those fees. Rost’s relationship with Lloyd began prior to Rost’s retirement but continued thereafter.
The Disciplinary Administrator assigned Scott Hesse to investigate the complaints. Hesse interviewed Judge Yeoman, Lloyd, Chappas, and the respondent, Rost. During his 2006 interview with Rost, Hesse observed that Rost’s law school diploma and certificates of bar admission issued by the Kansas Supreme Court and the Kansas federal district court were displayed on the office walls. Hesse also noticed a check on Rost’s desk that was payable to “Rost and Rost, Attorneys at Law.”
In the interview with Hesse, Rost labeled himself a “paralegal.” Rost related that he would go to court with his former clients and their new attorney and explain what was going on in the case, so that the new attorney would not need to look through a thick case file. Also during the interview, Hesse did an internet search of Rost’s name and discovered three websites identifying Rost as an attorney actively practicing criminal law, one of which had been updated in March 2006. Rost denied knowingly advertising on those websites.
In answering the formal complaint, Rost asserted that the hearing panel did not have jurisdiction to discipline a retired attorney. In response, the panel scheduled a prehearing conference, at which Rost was instructed to file a formal motion challenging jurisdiction. Rost’s May 13, 2008, formal motion to dismiss was overruled by the panel, and Rost sought relief from that ruling from the Supreme Court. On July 14, 2008, this court overruled Rost’s motion, finding that the Supreme Court and the Disciplinary Administrator had jurisdiction to consider the disciplinary complaints, notwithstanding Rost’s retired status. Thereafter, the hearing panel proceeded with the formal hearing, with Rost continuing to object to jurisdiction.
Following the hearing, the panel filed a final hearing report on January 12, 2009, in which it found that Rost had violated KRPC 5.5(a) (2008 Kan. Ct. R. Annot. 565) (unauthorized practice of law); KRPC 8.4(d) (2008 Kan. Ct. R. Annot. 586) (conduct prejudicial to the administration of justice); and Kansas Supreme Court Rule 208(a) (2008 Kan. Ct. R. Annot. 307) (only attorneys registered as active may practice law in Kansas). Pursuant to Supreme Court Rule 212 (2008 Kan. Ct. R. Annot. 327), Rost filed exceptions to the panel’s findings and submitted a brief to this court. Accordingly, we set forth the panel’s factual findings:
“FINDINGS OF FACT
“16. The Hearing Panel finds the following facts, by clear and convincing evidence:
“17. Thomas O. Rost (hereinafter‘the Respondent’) is an attorney at law, Kansas Attorney Registration No. 6297. His last registration address with the Cleric of the Appellate Courts of Kansas is 827 Southwest Topeka Boulevard, Topeka, Kansas 66612. The Respondent was admitted to the practice of law in the State of Kansas on February 16,1966.
“18. In 2001 and 2003, three disciplinary complaints were filed against the Respondent, DA8437, DA8440, and DA8946. The Review Committee of the Kansas Board for Discipline of Attorneys directed that a Hearing Panel conduct a Formal Hearing regarding the three complaints.
“19. Prior to the hearing, the Disciplinary Administrator and the Respondent entered into an agreement regarding the resolution of the three complaints. Specifically, the Disciplinary Administrator agreed to recommend to the Review Committee that it direct that the Respondent be informally admonished by the Dis-' ciplinary Administrator for the rule violations in the three disciplinary cases in return for the Respondent’s agreement to retire from the practice of law. The Disciplinary Administrator and the Respondent submitted die agreement to the Review Committee.
“20. The Review Committee accepted the agreement of the parties and directed that the Disciplinary Administrator informally admonish the Respondent for the rule violations contained in DA8437, DA8440, and DA8946. The Respondent registered with the Clerk of the Appellate Courts as retired, as of October 1,2005.
“21. In an undated agreement, the Respondent agreed to sell his practice to Eric Kjorlie.
“22. The Respondent and Mr. Kjorlie shared the fees that were received pursuant to the agreement. At the hearing on this matter, Mr. Kjorlie testified regarding this subject, as follows:
‘Q. [By Mr. Hazlett] Do you have any — did you have any agreement with how you would handle fees under those circumstances?
‘A. [By Mr. Kjorlie] Those fees would be brought in, I would put it into an account, and then we would split it out so we could maintain the office operation there in terms of sharing the fax machines, the company machines, the scanning machines, and that kind of an arrangement.
‘Q. As a practical matter let’s say somebody came in that was a client of Mr. Rost’s and let’s say this happens after October 1st of 2005, pays you a $2,000 retainer, how would that be split up?
‘A. Well, if it was a client that come [sic] in on that type of a referral I would put the money into the 8227 account. Half would come in to maintain operations and expenses I could draw from that, tire other half would go into this agreement and that’s basically how we operated.
‘Q. So half would go to tire payment of this exhibit — your obligations under this exhibit 12 agreement?
‘A. Right.’
“23. Prior to the Respondent’s retirement, the Respondent practiced at 827 Southwest Topeka Boulevard, Topeka, Kansas. The Respondent’s paralegal was Tonya McConnell. Located in front of the Respondent’s building was a sign that read, ‘Rost & Rost, Attorneys at Law.’ During his father’s lifetime, tire Respondent practiced with his father.
“24. Following tire Respondent’s retirement, he continued to work at 827 Southwest Topeka Boulevard, Topeka, Kansas. The Respondent had tire sign changed to read, ‘Rost & Rost Consulting, Inc.’
DA9925
“25. On April 14, 2006, the Respondent sent a letter to the Honorable Frank Yeoman, Jr., in case number 91GC126, In re Jeffrey Dusseault. The letter was prepared on the Respondent’s law firm letterhead and identified tire Respondent as an attorney. The letter provided:
‘This letter is in response to Mr. Hehtmanek’s letter of April 13, 2006. Please be advised that within tire next 14 days the final accounting for the above referenced case will be filed with tire Cleric of tire District Court.
‘My office has been short staffed due to my paralegal having surgery and being out for 6 weeks and now back only part time.’
The Respondent’s letter would lead a reasonable person to conclude that tire Respondent is an active practicing attorney.
“26. On April 25, 2006, the Respondent filed a Petition for tire Approval of Eighth and Final Annual Accounting in tire Dusseault case. The Respondent also filed an Order for Hearing and a Notice of Hearing. The documents were signed by the Respondent and the Respondent included his attorney registration number.
“27. Judge Yeoman wrote to the Disciplinary Administrator’s office regarding his observations of the Respondent. W. Scott Hesse was assigned to investigate Judge Yeoman’s complaint. During tire course of his investigation, Mr. Hesse called the Respondent’s office to schedule an interview. When Mr. Hesse called the Respondent, the Respondent answered the telephone and stated, ‘Rost & Rost.’
“28. Mr. Hesse scheduled an interview with the Respondent in the Respondent’s office. When Mr. Hesse went to the Respondent’s office, he observed the Respondent’s law license hanging on the wall. Additionally, Mr. Hesse observed a check at the Respondent’s office titled, Rost & Rost, Attorneys at Law.
“29. During the interview, the Respondent stated that he was retired from the practice of law and considered himself a paralegal. The Respondent told Mr. Hesse that he continues to meet with clients but that if a client wanted to go to court, he would refer the client to another attorney. The Respondent stated that he would also go to court with the client and the attorney so that he could assist the attorney handling the case.
“30. The Respondent told Mr. Hesse that his client base for Rost & Rost Consulting, Inc. was the same client based as Rost & Rost, Attorneys at Law. The Respondent informed Mr. Hesse that he intended to advise his clients on business issues, including farming, real estate, military matters, and other matters.
DA10114
“31. William Fish, a veteran, was declared incompetent by the Veterans Administration. Judge Yeoman appointed David Lloyd, a friend of Mr. Fish, as curator for Mr. Fish, so that Mr. Lloyd could manage Mr. Fish’s financial matters.
“32. At the time the curatorship was initiated, Robert Coulthard represented Mr. Lloyd in his capacity as Mr. Fish’s curator. Because Mr. Coulthard was unable to appear with Mr. Fish at a hearing held August 4, 2004, at Mr. Coulthard’s request, Mr. Kjorlie appeared with Mr. Lloyd. At that time, and continuing to today, Mr. Kjorlie rents office space in the Respondent’s building.
“33. On March 30, 2005, Mr. Lloyd came to the Respondent’s office and requested that the Respondent assist him in reconstructing the records relating to the first seven months of Mr. Fish’s curatorship. At that time, Mr. Lloyd paid the Respondent $600.00 from Mr. Fish’s account. In the memo fine, Mr. Lloyd indicated that the check was for ‘Legal Fee’s VA.’
“34. On March 31, 2005, Mr. Lloyd and the Respondent continued working together on reconstructing the records relating to Mr. Fish’s curatorship.
“35. On April 4, 2005, Mr. Lloyd and the Respondent went to US Bank to request bank records.
“36. On May 2, 2005, Mr. Lloyd paid the Respondent $678.00 from Mr. Fish’s account. In the memo line, Mr. Lloyd indicated that the check was for ‘accounting forVA.’
“37. On June 24, 2005, Mr. Lloyd paid the Respondent $600 from Mr. Fish’s account. In the memo line, Mr. Lloyd indicated that the check was for ‘audit Bill Fish.’
“38. The first annual accounting in Mr. Fish’s curatorship was due in August, 2005. However, Mr. Lloyd did not prepare and file the annual accounting as required by the Court.
“39. On October 18,2005, Mr. Lloyd paid the Respondent $600.00 for ‘attorney fees.’
“40. On March 9, 2006, Mr. Lloyd received a letter from the Veterans Administration indicating that Mr. Fish’s benefits were suspended because Mr. Lloyd failed to file the annual accounting in a timely manner.
“41. After Mr. Fish’s benefits were suspended, Mr. Lloyd came to the Respondent’s building for assistance. Thereafter, on April 26, 2006, a First Annual Accounting, covering the period from August 27,2004, to August 26,2005, was filed in Mr. Fish’s curatorship.
“42. In the First Annual Accounting, Mr. Lloyd acknowledged that he paid the Respondent a total of $1,878.00 for ‘Accounting Legal Fees.’
“43. On May 15, 2006, the Office of Regional Counsel of the Veterans Administration objected to the First Annual Accounting. One of the objections was based upon the ‘Accounting Legal Fees’ paid to the Respondent. Another objection lodged by the Veterans Administration included:
‘The ward was renting the home, which he shares with Mr. Campa, an expense for rent of $350.00 for rent to Mr. Lloyd shows each month until 1-03-05 when mortgage payment to tire Educational Credit Union of $691.00 appears and does each month for the remainder of the accounting period along with repair expenses for the residence, plumbing of $1,645.69, A/C repair $197.49 and monthly expense of over $100.00 to Orkin for pest control. The assets listed shows a home with a value of $35,900.00 and a mortgage of [$] 10,467.50, [sic] this belonged to the Curator David J. Lloyd and his spouse. No rent payments from Mr. Campa are reflected in the accounting.’
“44. In May, 2006, Mr. Lloyd met with the Respondent regarding tire issues raised by the Veterans Administration regarding the rent and mortgage payments made and the ownership of the property where Mr. Fish resided. Mr. Lloyd paid the Respondent $3,500 to assist him with resolving the problem with the property. The Respondent told Mr. Lloyd that Mr. Lloyd would have to ‘make peace’ with Mr. Kjorlie, the Court, and the Veterans Administration, over the issue with the property.
“45. The Respondent contacted the title company and determined the ownership of the property. The Respondent accompanied Mr. Lloyd to the bank to determine how Mr. Lloyd financed the property.
“46. In order to resolve the problem with the property, the Respondent recommended to Mr. Lloyd that he execute a quitclaim deed regarding the properly in question in favor of Mr. Fish. On May24,2006, Mr. Lloyd and his wife executed a quitclaim deed in Mr. Fish’s favor. The quitclaim deed was prepared by Ms. McConnell.
“47. On May 24, 2006, Mr. Lloyd filed an Amended Petition for the Approval of First Annual Accounting and Approval of Successor Curator. The pleading was prepared after Mr. Lloyd met with the Respondent. The pleading purports to have been made and filed by Mr. Kjorlie. In the pleading, regarding the fees paid to the Respondent, Mr. Lloyd stated:
‘The legal issues and reconstruction issues totaling One Thousand Eight Hundred Seventy-Eight Dollars ($1,878.00) are due to locating lost bank statements; acquiring duplicate bank statements from the financial institution; reconstruction of the transactions during this accounting period using the bank statements, can-celled checks and check registers, which took a number of hours in order to prepare the First Annual Accounting.’
Further, in response to the issue raised concerning the rent and mortgage payments made and the ownership of the property, Mr. Lloyd stated:
‘3. That the Petitioner prior to the curatorship on August 19, 2002, purchased a 24' x 41' mobile home and placed the mobile home on four (4) lots that were owned by the Petitioner and then sold the mobile home and lots to William A. Fish for a total amount of Twenty-Five Thousand Three Hundred Dollars ($25,300.00).
‘4. That William A. fish [sic] at the time could not qualify for a loan to purchase a living space for himself and his caregiver.
‘5. That the Petitioner states that the loan is now paid in full and the home and lots are deeded to William A. Fish.
‘6. Any sum shown as rent was made as loan payments not rent.
‘8. That the Petitioner states that Raymond R. Campa is not a tenant; Raymond R. Campa is a full time caregiver and receives monthly room and board along with a weekly salary in the amount of Three Hundred Eleven Dollars ($311.00).’
Finally, Mr. Lloyd requested that Mr. Kjorlie be appointed as successor curator.
“48. Mr. Lloyd suffered various health problems and had difficulty in recalling the reason for paying the Respondent the $3,500.00. On June 19,2006, Mr. Lloyd retained James G. Chappas to assist him in determining what Mr. Lloyd had paid the Respondent to do. To that end, Mr. Chappas wrote to the Respondent.
“49. On June 28, 2006, Mr. Kjorlie responded to Mr. Chappas in behalf of the Respondent, informed Mr. Chappas that he was representing the Respondent, and stated that Mr. Lloyd paid the Respondent the $3,500 for a business financial analysis relating to ownership by Mr. Lloyd of a piece of real estate.
“50. On June 29, 2006, Mr. Chappas wrote to Mr. Kjorlie and requested an itemization of the time expended in earning the $3,500.00. Neither the Respondent nor Mr. Kjorlie provided Mr. Chappas or his client with an itemization of the time expended in earning the $3,500.00.
“51. On July 6, 2006, Judge Yeoman sent Mr. Kjorlie a letter regarding the Amended First Annual Accounting. In the letter, Judge Yeoman stated:
‘The appearance of payments as reflected in the accounting made to Rost & Rost is rather “out of the blue” since Thomas Rost had nothing to do with this case that was known to the Court. I have since learned more about this situation (VA attorney had made inquiry before me) so I am now at least informed that Mr. Lloyd went to Rost for help with his accounting. Why he would do that I do not know! Lloyd’s records were, so I am told, in disarray and he required help. Rost was not his attorney, you were, and you have insisted that you and Rost have only an office sharing relationship.
‘The payments were made for “accounting legal fees,” whatever that terminology may mean. I know Mr. Rost is not an accountant and was, at that time, engaged in the practice of law. Lloyd was not authorized to pay a lawyer by use of the curatorship assets for services rendered without having first obtained permission of the Court by appropriate pleadings and order. The curator is ordered to reimburse the estate for all sums paid from the curatorship to the law firm of Rost and Rost — to the best of my knowledge that would be the total sum of $1,878.00 based on what is reported. He will have the opportunity to show, by appropriate documentation, the justification for the payments and this order will be reconsidered if he does that.’
“52. Mr. Kjorlie responded to the judge’s letter on July 20, 2006. In that letter, Mr. Kjorlie explained what the Respondent did to earn the $1,878.00 in fees. Mr. Kjorlie, however, failed to file a motion with the Court to allow the fees.
“53. On September 4, 2006, Mr. Chappas wrote to Mr. Kjorlie and requested information regarding the Respondent’s malpractice carrier.
“54. On September 20, 2006, Mr. Kjorlie wrote to Mr. Chappas. Mr. Kjorlie did not provide Mr. Chappas with information regarding the Respondent’s mal practice carrier. Regarding the $3,500.00, Mr. Kjorlie stated: ‘Mr. Rost, in addition, through a great deal of time and effort was able to work out the real estate transaction for which he charged Mr. Lloyd a commission . . .’
“55. On September 27, 2006, the Respondent sent a letter to the Disciplinary Administrator’s Office. The letter was prepared on the Respondent’s law firm letterhead and identified the Respondent as an attorney. However, on September 28, 2006, Ms. McConnell wrote to the Disciplinary Administrator’s Office and explained that she was at fault for sending the letter the day before on attorney letterhead.
“56. On October 6, 2006, Mr. Kjorlie wrote to Mr. Chappas. Mr.
Kjorlie asserted that he does not represent the Respondent in regard to the Fish Curatorship. Additionally, Mr. Kjorlie stated:
'. . . It is my understanding that at the request of Mr. Lloyd, Mr. Rost as a matter of a business consultation did a background investigation as it relates to the Education Credit Union for a set consulting fee and not as previously stated as a real estate commission, which is inaccurate.’ ”
STANDARD OF REVIEW
In disciplinary proceedings, this court considers the evidence, the findings of the hearing panel, and the arguments of the parties and determines whether KRPC violations exist, and, if so, what discipline should be imposed on the respondent. In re McPherson, 287 Kan. 434, 440-41, 196 P.3d 921 (2008); In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003). Attorney misconduct must be established by clear and convincing evidence. In re Nelson, 288 Kan. 179, 183, 200 P.3d 1262 (2009); Supreme Court Rule 211(f) (2008 Kan. Ct. R. Annot. 313). To be clear and convincing, evidence must establish the truth of the facts asserted is “highly probable.” In re B.D.-Y., 286 Kan. 686, Syl. ¶ 3, 187 P.3d 594 (2008). In making that determination, the appellate court should refrain from weighing conflicting evidence, assessing witness credibility, or redetermining questions of fact. In re B.D.-Y., 286 Kan. at 699.
HEARING PANEL LEGAL CONCLUSIONS
In finding a violation of KRPC 5.5(a) (2008 Kan. Ct. R. Annot. 565), which prohibits the unauthorized practice of law, the panel relied in part on State v.. Schumacher, 214 Kan 1, 519 P.2d 1116 (1974), which it found to be factually analogous. There, “[t]he only act respondent refrained from doing as a lawyer was making a formal appearance in court, i.e., he stayed behind the rail; in all other respects he continued to function just as he had before the suspension.” 214 Kan. at 20. The panel specifically noted Schumacher’s quotation from State ex rel., v. Perkins, 138 Kan 899, 908, 28 P.2d 765 (1934):
“One who confers with clients, advises them as to their legal rights, and then takes the business to an attorney and arranges with him to look after it in court is engaged in the practice of law.” 214 Kan. at 9.
The panel found that, after Rost took retired status, he continued “to serve his clients in the same manner in the same location under the same name without interruption or discontinuity,” with the only change being to have another attorney “front for him on most court appearances.” The panel recited:
“62. After the Respondent registered as a retired attorney, he practiced law. The Respondent held himself out as an active attorney, sent correspondence to the Court indicating that he continued to be an active attorney, utilized his bar number, filed pleadings with the Court, met with clients, provided Mr. Lloyd with legal advice, and directly assisted Mr. Lloyd in resolving legal problems, all in violation of the Respondent’s agreement with [the Disciplinary Administrator], Because the Respondent continued to practice law after taking retired status, the Hearing Panel concludes that the Respondent violated KRPC 5.5(a).”
With respect to the remaining violations, the panel declared:
“63. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). In this case, the Respondent engaged in ‘conduct that is prejudicial to the administration of justice’ when he practiced law when he was not authorized to do so. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(d).
“64. Kan. Sup. Ct. R. 208(a) states, in pertinent part, that, ‘[o]nly attorneys registered as active may practice law in Kansas.’ The Respondent engaged in the practice of law after he took retired status. Because the Respondent practiced law at a time when he was not registered as an active attorney, but rather as a retired attorney, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 208(a).”
RESPONDENT’S ISSUES
In his brief to this court, Rost identifies seven issues, which we take the liberty of paraphrasing as follows: (1) The Kansas Supreme Court has no jurisdiction to enforce the Kansas Rules of Professional Conduct against an attorney who has registered as being retired; (2) the hearing panel’s conclusions of law regarding the areas of law in which a retired attorney could properly engage in nonlegal work improperly restricts a retired person’s business opportunities; (3) the hearing panel improperly ignored Rost’s written and oral notifications that he was no longer practicing law; (4) Rost’s post-retirement activities did not constitute the practice of law; (5) the hearing panel failed to use the clear and convincing standard; (6) the hearing panel improperly applied the standards for imposing sanctions; and (7) the hearing panel recommendations for sanction were inappropriate.
JURISDICTION
Rost concedes that “[a]ny attorney admitted to practice law in this state and any attorney specially admitted by a court of this state for a particular proceeding is subject to the jurisdiction of the Supreme Court and the authority hereinafter established by these Rules.” Supreme Court Rule 201(a) (2008 Kan. Ct. R. Annot. 261). He does not deny that he was admitted to practice law in this state in 1966. However, he crafts an argument, based upon the provisions of Supreme Court Rules 208(a) and (f)(1) (2008 Kan. Ct. R. Annot. 307), that he ceased to be admitted to practice law when he registered as a retired attorney.
Specifically, Rost points to the provision in Rule 208(a) which permits an attorney to register as “active; inactive; retired; or disabled due to mental or physical disabilities,” and the following requirement that “[o]nly attorneys registered as active may practice law in Kansas.” 2008 Kan. Ct. R. Annot. 307. Likewise, Rost notes that Rule 208(f)(1) declares that “[a]n attorney who has registered as retired, . . . shall not be eligible to practice law in this state.” 2008 Kan. Ct. R. Annot. 308. He then argues that because an attorney registered as retired is not permitted to practice law, such an attorney is not “admitted to practice law” within the meaning of the jurisdictional provisions of Rule 201(a).
We disagree with the suggestion that an attorney loses his or her hard-earned status as an admitted Kansas attorney simply by registering as anything other than “active.” First, Rost ignores that our Rules Relating to Admission of Attorneys are set forth in Rules 701 through 710, inclusive (2008 Kan. Ct. R. Annot. 705-26). Most applicants for admission are governed by Rule 704 (2008 Kan. Ct. R. Annot. 710), entitled Admission to the Bar Upon Written Examination. Those applicants must demonstrate that they are “of good moral character, possessed of the requisite general education, and otherwise qualified to be examined,” prior to taking a written examination to demonstrate their knowledge of the law. Rule 704(c) (2008 Kan. Ct. R. Annot. 711). Then, if an applicant successfully passes the bar examination, the Supreme Court issues an order of admission, which becomes effective upon the talcing of an oath.
Only after successfully clearing the hurdles to obtain admission to the Kansas bar, via Kansas Supreme Court order, is an attorney subject to Rule 208’s requirement to annually register with the Clerk of the Appellate Court. Apparently, Rost overlooks the first sentence of Rule 208(a), which specifies that “[a]ll attorneys . . . admitted to the practice of law before the Supreme Court of the State of Kansas shall annually, . . . register with the Clerk of the Appellate Courts . . . .” (Emphasis added.) 2008 Kan. Ct. R. Annot. 307. Such language contemplates that there is a distinction between initially obtaining an order of admission from the Kansas Supreme Court and registering a status with the Clerk of the Appellate Court which provides a current eligibility to actively practice law.
Moreover, an attorney s unilateral action does not rescind the Supreme Court’s order of admission. For instance, when an attorney voluntarily surrenders his or her license to practice law, the Supreme Court responds with an order of disbarment which directs that the attorney’s name be stricken from the roll of attorneys admitted to practice in this state. See Supreme Court Rule 217 (2008 Kan. Ct. R. Annot. 343). Rule 208 does not require a Supreme Court order to permit an attorney to register on retired status with the Clerk of the Appellate Court and that act does not affect the order admitting the attorney to practice law in this state or effect a removal of the attorney’s name from the roll of admitted attorneys. Just as telling, Rule 208(f)(1) does not require a retired attorney to comply with the provisions of Rules 701 et seq., relating to the admission of attorneys, in order to be reinstated to active status.
Accordingly, we hold that an attorney who has been admitted to practice law in the state of Kansas by order of the Supreme Court, but who has registered with the Clerk of the Appellate Courts as being on retired status, remains subject to the Kansas Rules of Professional Conduct and subject to the enforcement of those rules by the Supreme Court and its designees.
RESTRICTING BUSINESS OPPORTUNITIES
Rost argued to the hearing panel that he was not practicing law because he was merely doing things that a person who is not an attorney might do. For instance, a nonlawyer real estate agent might prepare contracts or deeds, and, therefore, the argument is that a retired attorney is permitted to do the same things without being deemed to practice law.
The hearing panel answered that argument by opining that whether a retired attorney was practicing law when doing tasks that are also performed by nonlawyers depends on the retired attorney s area of practice prior to retirement. For example, a retired trial lawyer could become a real estate broker who completes simple contracts, negotiates deals, and fills out forms without practicing law. On the other hand, a real estate lawyer would be deemed to be practicing law if he or she became a real estate broker performing the same tasks. Rost contends that the panel’s area-of-prior-practice rule represents an unconstitutional restriction on a retired attorney’s pursuit of business opportunities.
First, we specifically reject the panel’s proposed rule that the determination of whether a retired attorney is engaging in the unauthorized practice of law turns on the nature of the attorney’s pre-retirement practice. Apparently, Rost’s argument- — that he was only doing what nonlawyers often do — enticed the panel to promulgate a rule which would provide some guidance on when an attorney can provide law-related services which are often provided by nonlawyers, e.g., real estate brokers, without being subject to the Rules of Professional Conduct. The panel’s endeavor to establish a bright-line rule was unnecessary. An attorney’s responsibili ties regarding law-related services are specifically defined in KRPC 5.7 (2008 Kan. Ct. R. Annot. 567).
KRPC 5.7(b) defines law-related services as those “that might reasonably be performed in conjunction with and in substance are related to the provision of legal services and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.” 2008 Kan. Ct. R. Annot. 567. The comments to the rule note that law-related services can involve “[a] broad range of economic and other interests of clients,” examples of which include “providing title insurance, financial planning, accounting, trust services, real estate counseling, legislative lobbying, economic analysis, social, work, psychological counseling, tax preparation, and patent, medical or environmental consulting.” 2008 Kan. Ct. R. Annot. 569. Accordingly, the services which Rost contends that he was providing to his post-retirement clients, e.g., accounting services and business advice, would appear to be enveloped within the definition of law-related services.
Nevertheless, a lawyer remains subject to the Rules of Professional Conduct even when providing law-related services, i.e., those that are not prohibited as unauthorized practice of law when provided by nonlawyers, when the services are provided:
“(1) by the lawyer in circumstances that are not distinct from the lawyer’s provision of legal services to clients; or
“(2) in other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist.” KRPC 5.7 (2008 Kan. Ct. R. Annot. 567).
The comments to the rule describe the potential for ethical problems when a lawyer or lawyer-controlled entity performs law-related services. The principal culprit is the possibility that the person for whom the law-related services are performed fails to understand that the services may not carry with them the protections normally afforded as part of the client-lawyer relationship. Accordingly, the burden is on the lawyer to show that reasonable measures have been taken to insure that the client understands that he or she may not expect the benefits of a lawyer-client relationship, such as the protection of confidences, the prohibition against representing conflicting interests, or the maintenance of professional independence.
In this respect, the panel’s focus on prior practice may be germane, if not determinative. If an attorney continues to perform the same law-related services, for the same clients, from the same location, with the same staff as was done when those services were not distinct from the attorney’s provision of legal services, the burden to show the requisite client understanding that the lawyer-client relationship had ceased would appear to be onerous, at best. Nevertheless, the touchstone is not the nature of the prior practice.
Given that finding, we need not belabor Rost’s tenuous and obtuse contention that the panel’s area-of-practice rule violates some constitutional right to pursue business opportunities. We discern no such constitutional right. Rost’s citation to Granholm v. Heald, 544 U.S. 460, 161 L. Ed. 2d 796, 125 S. Ct. 1885 (2005), which dealt with the Commerce Clause, is unavailing. Moreover, even where constitutional rights are implicated, the Supreme Court, by and through the hearing panel, may nevertheless enforce attorney disciplinary rules. See In re Wilkinson, 251 Kan. 546, 555, 834 P.2d 1356 (1992) (constitutional right of free speech subject to regulation in the area of attorney discipline).
WRITTEN AND ORAL DISCLOSURES
Next, Rost argues that tire hearing panel implicitly found, without any legal support, that Rost’s written and oral disclosures to clients — that Rost was retired from practicing law — were insufficient, as a matter of law, to prevent potential clients from being confused. He points to the fact that he changed his sign to read “Rost & Rost Consulting, Inc.” and his testimony that he told all of his clients that he was retired and not practicing law. Inexplicably, he then embarks on a discussion of what is required to establish a client’s waiver of a conflict of interest.
We do not read the final hearing report as making any such matter-of-law finding. To the extent Rost asks us to reweigh the evidence, we decline the invitation.
Rost’s better argument would have been to assert that changing tire name on his sign and telling his clients he was retired from the practice of law were reasonable measures to assure that the clients knew that his law-related services were not legal services subject to the protections of the client-lawyer relationship. Under the circumstances, however, that argument would not have been persuasive. Given the lack of sophistication of his clients and the many other indicia that Rost was still performing legal services, more was required from him to meet his notification burden.
DID RESPONDENT PBACT1CE LAW?
In his brief to this court, Rost asserts that the hearing panel based its determination that he was practicing law on five factors: Rost’s correspondence with the district court; Rost’s use of his Supreme Court registration number on documents filed with the district court; Rost’s meeting with clients; Rost’s specific meetings with Lloyd; and Rost’s resolution of Lloyd’s legal problems. He then makes a cursory attempt at refuting those factors.
With respect to the letter to Judge Yeoman on law firm letterhead, Rost asserts that the judge had testified that the Disciplinary Administrator had specifically advised the judge of Rost’s retirement and that the letter was prepared by a temporary employee on stationery which was supposed to have been destroyed. Regardless of what the judge might have known, Rost signed a letter to the court, with a copy to another attorney, on stationery identifying Rost as an attorney at a time when he was not permitted to act as an attorney. He must bear responsibility for that act and cannot shift the blame to members of his staff. See Supreme Court Rule 5.3(c) (2008 Kan. Ct. R. Annot. 561) (lawyer is responsible for employed nonlawyer conduct that would be KRPC violation if done by lawyer).
With respect to using his Supreme Court registration number on documents filed with the district court, Rost first contends that he continued to possess his registration number, notwithstanding his retirement. He then argues that “[u]nder Supreme Court Rule 211 [sic] attorneys are required to use their ‘Supreme court registration numbers for attorneys’ on pleadings.” Presumably, Rost intended to refer to Supreme Court Rule 111 (2008 Kan. Ct. R. Annot. 196), which deals with the form of pleadings in the district court. That rule actually cuts against Rost. It provides that “[a]ll pleadings, briefs, and other papers prepared by attorneys or litigants for filing in the courts . . . shall include the name, Supreme Court registration numbers for attorneys, address, and telephone number of the person filing them.” 2008 Kan. Ct. R. Annot. 196. Clearly, what distinguishes a pleading prepared and filed by an attorney from one that is prepared and filed by a litigant is the inclusion of a Supreme Court registration number. Accordingly, by including his registration number on the documents filed with the district court, Rost was identifying the pleadings as having been prepared and filed by an attorney. At the time, Rost was not authorized to prepare and file pleadings as an attorney.
With respect to meeting with clients, Rost simply refers us back to his argument that the hearing panel improperly restricted his business opportunities. We have rejected the argument that enforcing the prohibition against the unauthorized practice of law violates the Commerce Clause. To the extent that Rost suggests that he was permitted to meet with clients of a “consulting firm" which provided only law-related services, we find that potential argument is belied by Rost’s own description of his activities, which will be discussed below.
With respect to the last two factors involving Lloyd, Rost simply argues that Lloyd did not testify that he received legal advice and that the only testimony that exists is Rost’s statement that he advised Lloyd to obtain elsewhere the legal advice which Rost could not provide. This summary argument fails to address the fact that Rost investigated the ownership of the real property and the manner in which its purchase was financed; that Rost then determined and advised Lloyd that the discovered facts revealed a legal problem for Lloyd; that Rost recommendéd that Lloyd solve his legal problem by executing a quitclaim deed in favor of Mr. Fish; and that a quitclaim deed was prepared by Ms. McConnell, who was identified by Rost as his paralegal. Such a “consulting” endeavor required the application of legal knowledge and constituted the practice of law.
Perhaps the best evidence against Rost came from his own characterization of what he was doing after his “retirement.” He told Hesse that he was a “paralegal.” Some years ago, this court opined that a disbarred or suspended attorney could act as a paralegal. However, the activities of such a paralegal are limited.
“The consensus is that an attorney suspended from the practice of law may obtain employment as a law clerk, providing there are certain limitations upon the suspended attorney’s activities. Regarding hmitations, we are persuaded the better rule is that an attorney who has been disbarred or suspended from the practice of law is permitted to work as a law clerk, investigator, paralegal, or in any capacity as a lay person for a licensed attorney-employer if the suspended lawyer’s functions are limited exclusively to work of a preparatory nature under the supervision of a licensed attorney-employer and does not involve client contact. Any contact with a client is prohibited. Although not an inclusive list, the following restrictions apply: a suspended or disbarred lawyer may not be present during conferences with clients, talk to clients either direcdy or on the telephone, sign correspondence to diem, or contact diem eidier direcdy or indirecdy.” In re Wilkinson, 251 Kan. at 553.
Rost’s first problem is that he was not actually employed by a licensed attorney. Granted, he had an agreement with Kjorlie to sell his client base in which he agreed to provide “administrative assistance” to the buyer. However, the only compensation provision of that agreement involved splitting the future legal fees from Rost’s “client base.” In fact, Lloyd made his fee payments directly to Rost, rather than to Kjorlie.
Moreover, Kjorlie’s testimony clearly refuted that he was acting as Rost’s supervising attorney-employer in the matter. For instance, he appeared to be completely unaware of the particulars of the quitclaim deed preparation and was quite confused as to the nature of Lloyd’s $3,500 payment to Rost. Rost’s activities went far beyond “work of a preparatory nature.” Rather, Rost was operating as an independent paralegal who even employed his own paralegal, McConnell.
Further, as Rost told Hesse, the client base of the post-retirement consulting firm was the same as the law firm’s client base. Clearly, Rost made the majority, if not all, of the contacts with the clients. He even acknowledged that he would go to court with a former client and the new attorney to assist with the case. In short, the only change in Rost’s activities following retirement is that he would only “second chair” in court and that he would tell his clients he was a “retired attorney.” Rost was practicing law.
Rost attempts to avoid the rules set forth in Wilkinson by asserting that a retired attorney is different from a suspended or disbarred attorney. He intimates that a retired attorney has more leeway to engage in some sort of limited practice of law than an attorney who has been suspended. We disagree. The reasons for applying the Wilkinson rule — e.g. to avoid the appearance of impropriety, to avoid confusion among laypersons, or to avoid the temptation for law-trained clerks (or paralegals) to go beyond mere preparatory work — apply as equally to retired attorneys as to suspended or disbarred attorneys. See In re Wilkinson, 251 Kan. 549-51.
Rost’s situation is particularly akin to that of a suspended attorney because he avoided the potential of being placed on that status by agreeing to retire and cease practicing law. He was just as obligated to refrain from the practice of law as if he had been formally suspended.
CLEAR AND CONVINCING STANDARD
Given the brevity of Rost’s argument on this issue, we can recite it verbatim:
“The Hearing Panel admitted in paragraph 41 note 2 that it failed to use the clear and convincing standard as it related to the charge of preparing a legal document. In addition, Judge Yeoman testified that it was merely insinuation that he continued to practice law which of course is not sufficient to meet the clear and convincing standard.”
The panel’s footnote does not refute that it applied the correct standard to all of the evidence presented. To the contraiy, it corroborates that the panel knew and applied the correct standard. We are convinced that the truth of the facts presented, many of which came directly from Rost, is highly probable.
Moreover, Judge Yeoman's function in this proceeding was to present the facts of which he had knowledge. The fact that this witness did not proffer a definitive legal opinion that Rost was continuing to practice law is of no consequence.
STANDARDS FOR IMPOSING LAWYER SANCTIONS
Rost recites that he is challenging whether the standards for imposing lawyer sanctions were violated. For argument, however, he simply argues the facts, in effect urging us to reweigh the evidence and reassess witness credibility. We need not rehash the facts. Moreover, we find that the hearing panel correctly applied the applicable standards.
APPROPRIATENESS OF HEARING PANEL RECOMMENDATION
The hearing panel noted that this case is unique, and it crafted a recommended sanction which it felt would rectify the misconduct and prevent future misconduct. It recommended that Rost be disciplined by published censure, and in conjunction with the censure that the Supreme Court issue a cease and desist order. Then, if Rost subsequently violates that order, the court can cite him for contempt. In making its recommendation, the panel recited:
“65. In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by die lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“66. Duty Violated. The Respondent violated his duty to the profession to comply with rules and orders of the court.
“67. Mental State. The Respondent knowingly violated his duty.
“68. Injury. As a result of the Respondent’s misconduct, die Respondent caused potential harm to Mr. Lloyd and die legal profession.
“69. Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“70. Prior Disciplinary Offenses. In 2001 and 2003, the Respondent was previously disciplined by informal admonition in a total of three cases. In DA8437, the Disciplinary Administrator informally admonished the Respondent for having violated KRPC 1.3 and KRPC 8.4. In DA8440, the Disciplinary Administrator informally admonished the Respondent for having violated KRPC 1.5. In DA8946, the Disciplinary Administrator informally admonished the Respondent for having violated KRPC 8.4.
“71. Dishonest or Selfish Motive. The Respondent’s misconduct — practicing law after he was retired from the practice of law — was motivated by selfishness.
“72. A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct by continuing to practice law after he had taken retired status.
“73. Refusal to Acknowledge the Wrongful Nature of Conduct. The Respondent refused to admit any wrongdoing.
“74. Vulnerability of Victim. Mr. Lloyd is an ill and feeble elderly man. He was vulnerable to the Respondent’s misconduct.
“75. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“76. Previous Good Character and Reputation in the Community Including any Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent was an active and productive member of the bar in Topeka, Kansas. He enjoyed the respect of his peers and clients and generally possesses a good character and reputation.
“77. In addition to the above-cited factors, die Hearing Panel has thoroughly examined and considered the following Standards:
‘Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duly owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.’ Standard 7.2.
‘Reprimand is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duiy owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.’ Standard 7.3.
‘Reprimand is generally appropriate when a lawyer: . . . (b) has received an admonition for the same or similar misconduct and engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.’ Standard 8.3.”
In contrast, the Disciplinary Administrator recommends that Rost be disbarred, citing to two additional standards:
“Disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system.” Standard 7.1.
“Disbarment is generally appropriate when a lawyer:
(a) intentionally or knowingly violates the terms of a prior disciplinary order and such violation causes injury or potential injury to a client, the public, the legal system, or the profession.” Standard 8.1(a).
The Disciplinary Administrator supports the recommendation for a harsher sanction by arguing that Rost blatantly violated his agreement with the Disciplinary Administrator s office to retire from the practice of law; that he has failed to acknowledge any wrongdoing; and that he took advantage of Lloyd, who the panel described as an “ill and feeble elderly man.”
Rost challenges the panel’s recommendation, believing that no sanction is warranted. He argues that we have no jurisdiction over retired attorneys; that his unintentional letter to the district court and use of his attorney registration number do not warrant public censure; and that his actions with regard to Lloyd did not establish, by clear and convincing evidence, that he was practicing law.
This court carefully considers the sanction recommendations of assigned hearing panels, as well as giving due regard to those of the Disciplinary Administrator. However, we are not constrained by those recommendations and may fashion a sanction that is entirely of our own choosing. Supreme Court Rule 212(f) (2008 Kan. Ct. R. Annot. 328-29) (sanction recommendations are “advisory only and shall not prevent the Court from imposing sanctions greater or lesser than those recommended”).
We discern that the hearing panel was striving to develop a sanction recommendation which would provide for some oversight to insure that Rost does not continue to practice law. However, we agree with the Disciplinary Administrator’s assessment that a more severe sanction is warranted. When previously faced with disciplinary proceedings, Rost essentially agreed to an indefinite suspension from the practice of law, styled as a retirement. He was unwilling to abide by that agreement and gives no indication that he understands that being on retired status does not permit him to independently practice law, even on a limited basis. Imposing a sanction of disbarment will clarify Rost’s status, both for him and for his clients. See Supreme Court Rule 218 (2008 Kan. Ct. R. Annot. 350) (disbarred attorney must notify clients in writing of inability to provide further legal representation).
Based upon our consideration of the entire record, the arguments of counsel, and statements of the respondent, we conclude that the appropriate discipline in this case is disbarment from the practice of law in this state.
It Is Therefore Ordered that the respondent, Thomas O. Rost, be and he is hereby disbarred from the practice of law in the state of Kansas in accordance with Supreme Court Rule 203(a)(1) (2008 Kan. Ct. R. Annot. 266) for his violations of the Kansas Rules of Professional Conduct.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Thomas O. Rost from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that the respondent shall forthwith comply with the provisions of Supreme Court Rule 218 (2008 Kan. Ct. R. Annot. 350) and shall furnish proof of compliance to the Disciplinary Administrator.
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the respondent pay the costs of these proceedings.
Luckert, and Rosen, JJ., not participating.
Elliott, and Caplinger, JJ., assigned.
“x At the hearing on this matter, die Respondent testified that Mr. Lloyd’s check dated October 18, 2005, but not deposited until April, 2006, was for legal fees incurred prior to his retirement from the practice of law on October 1, 2005.”
“2 The pleading appears to have been prepared and filed by Mr. Kjorlie. According to the Respondent, ‘Tonya M. McConnell . . . prepared the accounting based upon Mr. Lloyd’s records under the direction of Mr. Kjorlie.’ According to statements made by Mr. Kjorlie to Mr. Hesse, during his investigation, Mr. Kjorlie did not prepare the accounting nor did he assist Mr. Lloyd in preparing or filing the accounting. Mr. Kjorlie’s testimony regarding this matter at the Formal Hearing was less iban clear. While the Respondent may have drafted the pleading, he denied doing so. Clear and convincing evidence was not presented to establish who prepared die pleading.”
“3 Despite the assertions that Mr. Kjorlie assisted Mr. Lloyd during this time, it does not appear that Mr. Lloyd paid attorney fees to Mr. Kjorlie. The only fees paid by Mr. Lloyd during this time appear to have been paid to the Respondent.” | [
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Per Curiam:
This is a contested proceeding in discipline filed by the Disciplinary Administrator against Respondent, Steven K. Woodring, of Clearwater, an attorney admitted to the practice of law since 1986.
A hearing panel of the Kansas Board for Discipline of Attorneys conducted an evidentiary hearing and found Respondent violated eight rules of the Kansas Rules of Professional Conduct (KRPC):
KRPC 1.1 (2008 Kan. Ct. R. Annot. 400) (competence);
KRPC 1.3 (2008 Kan. Ct. R. Annot. 415) (diligence);
KRPC 1.4 (2008 Kan. Ct. R. Annot. 432) (communication);
KRPC 1.15 (2008 Kan. Ct. R. Annot. 493) (safekeeping property);
KRPC 3.3 (2008 Kan. Ct. R. Annot. 531) (candor toward the tribunal);
KRPC 5.5 (2008 Kan. Ct. R. Annot. 565) (unauthorized practice of law);
KRPC 8.1 (2008 Kan. Ct. R. Annot. 579) (bar admission and disciplinary matters); and
KRPC 8.4 (2008 Kan. Ct. R. Annot. 586) (misconduct).
In addition, the hearing panel determined Respondent violated Supreme Court Rule 207(b) (2008 Kan. Ct. R. Annot. 295) (duties of the bar and judiciary).
Based on these violations, and considering the aggravating and mitigating circumstances discussed below, the panel recommends suspending Respondent from the practice of law for 1 year. The panel further recommends that he undergo a reinstatement hearing pursuant to Rule 219 (2008 Kan. Ct. R. Annot. 365) before he can be reinstated after the suspension period. Respondent asks to be placed on a proposed probation plan, even though the hearing panel rejected that plan during its proceedings. The Disciplinary Administrator suggested a 3-month suspension to the panel, plus a reinstatement hearing, and repeated that recommendation to this court at oral arguments.
Respondent admits his misconduct. The controversy, Respondent contends, deals with the panel’s decision not to keep the record open after his evidentiary hearing to permit him to submit additional medical evidence about his claim that he suffered from depression, the panel’s consideration of the aggravating and mitigating circumstances, and the 1-year suspension.
We believe six issues are presented: (1) Did the panel violate Respondent’s due process rights by denying his request to submit additional evidence after the hearing; (2) were additional factual findings favorable to Respondent supported by the record; (3) was there sufficient evidence to support the aggravating factors found by the panel; (4) did the panel apply the wrong standards from the American Bar Association; (5) was there sufficient evidence to find Respondent’s depression and reputation in the community were mitigating factors; and (6) what is the appropriate discipline?
Appellate Standard of Review
In disciplinary proceedings, this court “considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. [Citation omitted.]” In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003). Any attorney misconduct must be established by clear and convincing evidence. 276 Kan. at 636. Clear and convincing evidence is evidence causing the factfinder to believe the truth of the facts asserted is “highly probable.” In re B.D.-Y., 286 Kan. 686, 697, 187 P.3d 594 (2008). In attorney discipline cases, the hearing panel is the finder of fact. If the Respondent does not take exception to a finding, it is deemed admitted. Supreme Court Rule 212(c) (2008 Kan. Ct. R. Annot. 327).
Application of Standard to Facts
To apply the standard to these proceedings, we need to outline the violations found by the panel from four separate complaints: (1) A client complaint from B.H.; (2) a complaint from Judge Anthony Powell; (3) a client complaint from D.V.; and (4) a client complaint from F.S.
DA9586 — Complaint by B.H.
Regarding the complaint by B.H., the hearing panel found the following facts by clear and convincing evidence. In November 2004, B.H. hired Respondent to represent him in a civil case. Respondent filed a 10-day request for clerk’s extension of time to file an answer, but he never filed an answer or other responsive pleading within the time extended by the clerk. In late December 2004, B.H. called Respondent for an update on the case. Respondent told B.H. he was still working on it and would let B.H. know as developments occurred. On January 6,2005, default judgment was entered against B.H. Respondent testified he was not notified or aware of the default judgment. B.H. said he did not receive any notice of the judgment.
In March 2005, B.H. attempted to obtain a loan and was told he was not eligible for a lower interest rate because of the outstanding civil suit. B.H. called Respondent to again inquire about the litigation’s status and was told by Respondent that he would take care of it. But Respondent continued to take no action to further B.H.’s representation. In April 2005, B.H. again sought an update from Respondent and was told again Respondent would take care of it. Respondent also said he thought the opposing counsel was going to abandon the case.
On May 31, 2005, B.H.’s wages were garnished. B.H. retained new counsel when he was unable to reach Respondent. B.H.’s new attorney obtained representation for B.H. through a home insurance policy, and the garnishment and default judgment were set aside.
DA10162 — Complaint by Judge Anthony Powell
Regarding the complaint by Judge Anthony Powell, the hearing panel found the following facts by clear and convincing evidence. For the 2006-2007 attorney registration period, Respondent failed to pay the annual attorney registration, comply with the continuing legal education (CLE) requirements, pay the CLE fee, and pay the CLE noncompliance fee. As a result, on October 11, 2006, this court suspended Respondent’s license to practice law. Despite the suspension, Respondent continued to actively practice law.
On March 12, 2007, while still under suspension, Respondent appeared in Sedgwick County District Court before the Honorable Anthony Powell on a post-divorce matter. During the hearing, the other party questioned whether Respondent was authorized to appear in court because of the suspension. Judge Powell confronted Respondent about this while on the record during the proceedings. Respondent told Judge Powell he had a petition for reinstatement pending and “it’s covered.” This statement was false. When asked directly whether he was able to appear in court, Respondent answered, “Yes.” Judge Powell then relied on Respondent’s false statements in determining Respondent was able to continue with the proceeding.
After appearing before Judge Powell, Respondent took the necessary steps to have his license to practice law reinstated. Thereafter, on April 1, 2007, this court reinstated Respondent to the practice of law.
On May 7, 2007, Respondent hand-delivered a letter to Judge Powell. The letter provided as follows:
“I am writing to you on the case listed above. My law license was suspended from October 11, 2006 through April 1, 2007. My license is now in good status. I had representation on the case listed above in your Court during the time period of my suspension for failing to pay fees and obtain CLE hours. I am sending a similar letter to my client advising him of my suspended status during this time period. I had previously told Mr. Moss that I would not represent him in this modification sought by Ms. Harrison, but because he was out of state I would get him time to make an appropriate response. I did not previously tell him my privilege was not in good standing.
“I want to apologize to you for appearing in front of you when my privilege to practice was not valid. When you inquired regarding my status, I gave a vague and misleading response, or more accurately non-response. This was entirely improper. I understand that I have a duty to the Court as well as to my clients to make proper representation of my status to practice law, and I have failed to be candid with the Court regarding my status. Please understand that I meant no disrespect to the Court in making this appearance; it was purely my inability to deal with the situation in which I found myself. Again, I apologize to you. A copy of this letter is being sent by me to the Disciplinary Administrator in Topeka.”
DA10228 — Complaint by D.V.
Regarding the complaint by D.V., the hearing panel found the following facts by clear and convincing evidence. On October 13, 2006, which was 2 days after Respondent was suspended from the practice of law, D.V. hired Respondent to get her drivers license reinstated. D.V. was referred by Kansas Legal Services (KLS), and she paid $308 for the representation of which $280 was received by Respondent and $28 was paid to KLS.
After D.V. retained Respondent, he was dilatory in seeking to restore her driver’s license. From the time Respondent was retained to May 2007, D.V. called Respondent approximately 30 times and left messages for him to call her. Respondent returned only five telephone calls, during which Respondent said he intended to resolve the problem with her driver’s license. But Respondent failed to take any action toward completing his representation, except to make a few preliminary contacts. The panel concluded Respondent did not take “reasonable steps” to get D.V.’s driver’s license reinstated.
DA10238 — Complaint by F.S.
Regarding the complaint by F.S., the hearing panel found the following facts by clear and convincing evidence. In November 2006, while Respondent was under suspension by this court, F.R. retained Respondent to represent his son, F.S., in a traffic matter. F.R. was referred to Respondent by KLS, and he paid $308 for the representation of which $280 was received by Respondent and $28 was paid to KLS.
After being retained by F.R., Respondent failed to return F.R.’s phone calls or take any action on behalf of F.S. On March 13,2007, F.R. sought assistance from the Wichita Bar Association’s Fee Dis pute Committee to get a refund of the unearned fees. The hearing panel noted that as of the date of its report, Respondent had not refunded the $308 paid by F.R. Parenthetically, we observe that at the time of oral argument before this court, Respondent acknowledged he still had not refunded this money.
On June 1, 2007, F.R. filed a complaint with the Disciplinary Administrator s office regarding Respondent. On June 27, 2007, the Disciplinary Administrator wrote Respondent and directed him to provide a written reply to the complaint. Respondent failed to provide a written response. This failure made it necessaiy for a special investigator with the Disciplinary Administrator to contact Respondent by telephone and in writing directing him to cooperate with the disciplinary investigation. Respondent failed to respond to the letter, the telephone calls, or otherwise cooperate in the investigation.
The Panel’s Recommended Sanction
Based upon the above-stated factual findings, the hearing panel determined Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.15, KRPC 3.3, KRPC 5.5, KRPC 8.1, KRPC 8.4, and Kansas Supreme Court Rule 207. The panel found the Disciplinary Administrator failed to establish by clear and convincing evidence that Respondent violated KRPC 3.2 (2008 Kan. Ct. R. Annot. 525) (expediting litigation). In addition, the panel declined to find Respondent violated Supreme Court Rule 208 (2008 Kan. Ct. R. An-not. 307) (attorney registration), as it would be duplicitous to the finding he violated KRPC 5.5 (2008 Kan. Ct. R. Annot. 565).
From those determinations, the panel recommended a 1-year suspension, based on the following discussion and analysis:
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to his clients to provide competent and diligent representation. Additionally, the Respondent violated his duty to his clients to provide reasonable communication. Further, the Respondent violated his duty to the public and to the profession to maintain his personal integrity and comply with orders of the court.
“Mental State. The Respondent knowingly violated his duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to his clients and to the legal profession.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Dishonest or Selfish Motive. The Respondent’s misconduct before Judge Powell was motivated by dishonesty. Providing false responses to questions posed by a District Court Judge is serious misconduct.
“A Pattern of Misconduct. Included in this case are four complaints. Three complaints involve similar misconduct. Accordingly, the Respondent engaged in a pattern of misconduct.
“Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.15, KRPC 3.3, KRPC 5.5, KRPC 8.1, KRPC 8.4, and Kan. Sup.'Ct. R. 207. As such, the Respondent committed multiple offenses.
“Vulnerability of Victim. [D.V.] and [F.S.] were referred to the Respondent through Kansas Legal Services. Kansas Legal Services is a statewide non-profit organization, dedicated to helping low income Kansans. As such,[D.V.] and [F.S.] were vulnerable to the Respondent’s misconduct.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1986. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for more than 18 years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct.
"Indifference to Making Restitution. To date, the Respondent has made no effort to make restitution to [D.V.] and [F.R.] for the unearned legal fees.
"Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Personal or Emotional Problems if Such Misfortunes have Contributed to a Violation of the Kansas Rules of Professional Conduct. During the hearing on the Formal Complaint, the Respondent testified that he has suffered from depression for some time. According to the Respondent, his depressed state contributed to the misconduct. No evidence was offered to corroborate the Respondent’s testimony.
“The Present and Past Attitude of the Attorney as Shown by the Respondent’s Cooperation During the Hearing and the Respondent’s Acknowledgment of the Transgressions. The Respondent fully cooperated in the disciplinary process as exhibited by his complete acknowledgment of the misconduct.
“Remorse. At the hearing on the Formal Complaint, the Respondent expressed genuine remorse.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.’ Standard 4.42.
‘Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.’ Standard 6.12.
‘Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding.’ Standard 6.22.
‘Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.’ Standard 7.2.”
Analysis
(1) Did the hearing panel violate Respondent’s right to due process hy denying his request to submit additional evidence after the hearing?
Respondent argues fundamental fairness requires a rehearing because, after the hearing, the panel did not allow Respondent to submit written information from his physician and counselor about his claim that he suffers from depression. Respondent contends this information was relevant, as a mitigating factor, to establish that his depression contributed to the violations and how continued treatment would alleviate the depression. As noted above, the final hearing report reflected that “[n]o evidence was offered to corroborate the Respondent’s testimony [regarding his depressed state].”
As background for this argument, we note Respondent testified personally at his hearing that he suffered from depression and offered his opinion that this depression was a factor in his misconduct. He did not call his doctor or counselor as a witness, and he did not submit any documentation about his illness. When asked why he did not call these witnesses, Respondent told the panel:
“I should have . . . but I didn’t choose to — [sic] I did not subpoena them and have them come. . . . [M]y opinion was I guess that the letters from folks, the ongoing issues and difficulties . . . and quite frankly my own admissions . . . would be sufficient to . . . establish that.”
A member of the panel then asked if he would be willing to submit letters from his doctor to the panel, and Respondent agreed. The panel member indicated he would be interested in that information. But after the parties rested, the panel informed Respondent it had not formally requested he submit letters regarding his depression. Respondent asked the panel to allow it in the following statement:
“I would like to ask for the opportunity to present [the letters], I haven’t done as good a job as I need to in presenting my case to you. I would ask that you keep the record open so that I would be able to present that . . . .”
The panel reiterated it would consider his request during deliberation, but it had not agreed to keep the record open for additional evidence. There is no evidence Respondent attempted to submit any documentation to the panel after the hearing, even though nearly 90 days passed between the time the hearing concluded and the date of the panel’s written report. Respondent made no effort to follow up on this submission during this time and explains that he was confused as to whether it would have been proper to do so.
Respondent argues now that fundamental fairness requires allowing him to submit these letters because a panel member asked for them before Respondent concluded his testimony. He argues he was not informed the letters would not be allowed until after he rested his case. Respondent believes a new panel should be constituted to receive this evidence, rehear the other evidence previously presented, and then consider anew what recommendations to make to this court.
An attorney has a property interest in his or her license, and it cannot be deprived without due process of law. In re Brown, 258 Kan. 731, 734, 907 P.2d 132 (1995). The fundamental due process requirement is “the opportunity to be heard at a meaningful time and in. a meaningful manner.” In re J.D.C., 284 Kan. 155, 166, 159 P.3d 974 (2007).
Respondent appears to argue he was not heard in a meaningful manner because he was not allowed to submit additional evidence that he was not prepared to present at the original hearing. But Respondent had the opportunity to submit letters from his doctor and counselor or to call these witnesses to testify at the hearing, and he knew this well in advance of the hearing date. The Notice of Hearing, dated March 13, 2008, specifically advised: “Respondent is . entitled to be represented by counsel, to cross-examine witnesses, and to present evidence.” In addition, Rule 211 (2008 Kan. Ct. R. Annot. 313) informs parties to these proceedings how formal hearings are to be conducted and makes it obvious that this is the opportunity to put on evidence.
Yet despite this notice, Respondent came to the hearing unprepared to corroborate his own testimony. He knew, or certainly should have known, that it would be necessary for him to place into evidence supporting evidence about his medical diagnosis, his treatment, and his prognosis. He obviously made the choice to offer this medical evidence through his own testimony, rather than to corroborate his testimony with qualified medical evidence.
It cannot be reasonably argued now that Respondent was denied fundamental fairness when it was his own decision that led to this evidence not being available for presentation to the panel at the hearing. Having failed to follow the procedures available to him, his due process rights were not violated.
(2) Did the hearing panel fail to make adequate findings of fact?
Next, Respondent argues the panel should have made additional factual findings. He contends these facts would affect the panel’s determinations concerning the aggravating and mitigating factors involved in this case when imposing discipline. But he does not argue there was insufficient evidence to support the panel’s findings. Instead, he contends the panel failed to give enough weight to the evidence he believes is helpful to him. Specifically, Respondent argues the panel did not give appropriate emphasis to facts in the record that would demonstrate: (1) how he cooperated with the new attorney hired to defend the default judgment; (2) his hand delivery of a personal apology to Judge Powell; (3) his not appearing again in court after appearing in Judge Powell’s court; (4) his returning some of the calls from clients and calls on behalf of clients; and (5) his speaking to the Disciplinary Administrator’s investigator about the F.S. case, even though he did not submit a written response as required.
But these facts were not material, and most were required of Respondent anyway. For example, Respondent cannot claim that ceasing his unauthorized practice of law after appearing before Judge Powell is a mitigating circumstance. He was bound by our rules not to practice law immediately after he was suspended for failing to comply with applicable CLE requirements. Similarly, he was obligated to cooperate with the Disciplinary Administrator’s office. Supreme Court Rule 207(b) (2008 Kan. Ct. R. Annot. 295). We find it reasonable not to give Respondent credit as a mitigating factor for simply doing what we expect from licensed attorneys, who already have agreed to follow the Kansas Rules of Professional Conduct in order to practice their profession.
But even if we were inclined to consider these additional facts as evidence as to whether Respondent attempted to rectify the consequences of his misconduct under Standard 9.32(d) (timely good faith effort to make restitution or to rectify consequences of misconduct), that would be countered by the panel’s finding that Respondent was indifferent about making restitution to D.V. and F.S. This failure would legitimately overwhelm other mitigating factors and support the panel’s recommendation. In re Walsh, 286 Kan. 235, 248, 182 P3d 1218 (2008) (“[T]he panel must consider the evidence presented with respect to aggravating and mitigating circumstances and determine how much weight to assign to each in arriving at an appropriate discipline.”).
As pointed out by the Disciplinary Administrator in his brief, it is obvious from reviewing the panel’s hearing report that it was aware of the facts that Respondent believes mitigate his misconduct. The hearing panel simply did not give those factors as much weight as Respondent believes the panel should have given them. This court should not reweigh the evidence. 286 Kan. at 248.
(3) Was there insufficient evidence to support the aggravatingfactorsfound by the panelP
Next, Respondent contends there was insufficient evidence for the hearing panel to consider the following aggravating factors: dishonest or selfish motive; vulnerability of the victims; and indifference to making restitution. For the reasons discussed here, we find there was ample evidence presented to support the panel’s determinations regarding these aggravating factors and that Respondent’s arguments lack merit.
The hearing panel found Respondent’s conduct before Judge Powell was motivated by dishonesty. Respondent attempts to split hairs by conceding that his behavior was dishonest, but claiming his motive was not. In his brief, Respondent argues he appeared in court even though he was suspended from the practice of law to prevent the opposing party from “abus[ing] the Court system on an out-of-state party.” But Respondent testified at his disciplinary hearing that another reason for appearing was because he was struggling financially. This alone was sufficient to justify the conclusion that his motive was selfish and his intent was to misrepresent to the court that he was licensed and able to appear in court. This fully supports the panel’s finding that Respondent’s misconduct was motivated by dishonesty.
The hearing panel also found D.V. and F.S., the clients referred to Respondent by KLS, were vulnerable because “[KLS] is a statewide non-profit organization, dedicated to helping low income Kansans.” Respondent contends it was inappropriate for the panel to make a blanket finding that all clients qualifying for KLS’s reduced fee program are vulnerable. The Disciplinary Administrator argues individuals must have low income before qualifying for the program, and they are vulnerable because they do not have the ability to readily hire new counsel. This court previously has recognized a client’s financial condition can make the client particularly vulnerable to an attorney’s misconduct. In re Potter, 279 Kan. 937, 945, 112 P.3d 216 (2005) (clients were vulnerable because they were filing for bankruptcy).
Both D.V. and F.S. sought legal assistance from KLS, and they both qualified for the reduced fee program offered by this non profit agency. Both clients paid $308 for Respondent’s representation. Under the circumstances, the hearing panel was justified to find these clients were vulnerable. The panel did not err in finding the victims’ vulnerability was an aggravating circumstance.
The panel also found Respondent’s indifference to making restitution to D.V. and F.S. for the unearned legal fees was an aggravating factor. The panel based its finding of indifference on Respondent’s failure to make restitution by the time of the hearing. As mentioned above, by the time Respondent appeared before this court to argue against the panel’s findings, Respondent said he still had not repaid his victims.
Respondent provided no evidence to the hearing panel demonstrating he was incapable of reimbursing his clients. Respondent testified he was working as a pro tern judge during the time leading up to the discipline hearing, and we add that he represented to this court at oral argument that he was still working as a pro tern small claims court judge in Sedgwick County. The hearing before the panel occurred in May 2008, and he received the payments from D.V. and F.S. in October and November 2006, respectively.
As the Disciplinary Administrator argues, it is difficult to believe Respondent could not reimburse these clients for any of the money he owes them. We would add that it also is difficult to believe Respondent would appear before this court to argue against the panel’s finding of indifference in making restitution to his victims, when he still had not made that restitution by the time of oral argument. We conclude that the panel’s finding of indifference as an aggravating circumstance was supported by ample evidence.
(4) Did the panel apply the wrong American Bar Association (ABA) Standards?
Respondent next argues the hearing panel employed the wrong ABA Standards for Imposing Lawyer Sanctions (Standards) when determining what sanction to impose. He contends the panel should have considered Standard 4.43, which states reprimand is appropriate when the attorney’s misconduct involves lack of due diligence, but that the hearing panel cited to Standard 4.42 instead. This argument fails because the panel is not required to cite or follow any ABA Standards.
The ABA Standards are guidelines that may be used to assist a panel when deciding what discipline to impose. A hearing panel is not required to cite, discuss, or employ these standards. In re Ware, 279 Kan. 884, 892, 112 P.3d 155 (2005). As this court previously stated:
“Neither this Court nor the hearing panel are required to cite and discuss every potentially applicable standard. Moreover, discussion of any standard is not required. The Standards are guidelines to assist courts in selecting appropriate and uniform discipline, depending upon the facts and the aggravating and mitigating factors of each case.” In re Keithley, 252 Kan. 1053, 1057, 850 P.2d 227 (1993).
Both Standards 4.42 and 4.43 were discussed at the hearing. The panel chose to cite Standard 4.42 pertaining to suspension, which was consistent with their recommendation. Standard 4.43 discusses when probation is appropriate, and it states: “Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client.” Here, it is obvious the hearing panel found Respondent’s misconduct was more than mere negligence. Its reference to Standard 4.42 was appropriate based on the clear and convincing evidence found by the panel.
(5) Was there sufficient evidence to find Respondent’s depression and community reputation were mitigatingfactors?
Respondent next argues the evidence supported the panel finding two additional mitigating factors. The first is his claim that he suffered from depression, which caused his misconduct and can be treated. The second is his claim that he has good character and enjoys a good reputation in the community. The Disciplinary Administrator argues the panel considered Respondent’s testimony on these matters and was justified in determining neither was sufficient to warrant consideration as a mitigating factor.
As to the first matter, Respondent contends his depression and financial difficulties were emotional and personal problems contributing to his violation of the Rules and should have been found as mitigating factors. The hearing panel addressed these matters in its final report. It acknowledged Respondent’s testimony that he suffered from depression, and it acknowledged his opinion that the depression contributed to his misconduct. But the panel did not believe this testimony was sufficient to establish a mitigating factor because Respondent offered no evidence to corroborate his assertions, as we discussed above.
Under Standard 9.32(i), a finding that a mental disability qualifies as a mitigating factor requires showing four factors: (1) There is medical evidence the Respondent is affected by a mental disability; (2) the mental disability caused the misconduct; (3) Respondent’s recovery from the mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recoveiy arrested the misconduct and recurrence of that misconduct is unlikely. ABA Standard 9.32(i)(l)-(4).
Respondent failed to make a showing as to any of these elements. He had ample notice and opportunity to submit evidence about his condition, but came to the hearing unprepared to do so. The panel did not err in deciding not to consider this as a mitigating factor.
As to character and reputation, Respondent contends the hearing panel should have found his previous good character and reputation in the community were mitigating factors. He claims he established this through two letters. The first letter was from Thomas Lasater, a local attorney familiar with Respondent. Lasater wrote he knew Respondent for many years, and he thought “[w]hen [Respondent] is on his game, he is truly a credit to his profession.” Lasater also stated that “[w]ith proper medical care and professional monitoring, I believe [Respondent] will be able to comply with all of his duties and obligations as a practicing lawyer.”
The second letter was from David Hiebert, another local attorney. The letter was addressed to the Disciplinary Administrator indicating Hiebert would supervise Respondent’s practice if the panel agreed to probation. This letter contained no information on Respondent’s character. It merely stated that Hiebert was “familiar with [Respondent’s] depression issues.”
Hearing panels in other discipline cases have relied upon reference letters to determine whether the Respondent possessed a good character and reputation in the community. But these cases required a significant showing to establish this factor. See In re Ellis, 288 Kan. 604, 204 P.3d 1161, 1164 (2009) (good character and reputation was “evidenced by a number of letters”); In re Campbell, 287 Kan. 757, 761, 199 P.3d 776 (2009) (good character and reputation was evidenced by “several letters”). Other hearing panels have also relied upon the testimony of reputation witnesses or the combination of both character witnesses and letters to establish this factor. See In re Lee, 287 Kan. 676, 682, 198 P.3d 140 (2008) (good character and reputation was established through testimony of character witnesses); In re Lazzo, 283 Kan. 167, 171, 150 P.3d 887 (2007) (good character and reputation was established by testimony of witnesses and several letters).
Respondent submitted one letter, and he failed to subpoena any character witnesses. The panel did not err in failing to find this factor in his favor. See In re Walsh, 286 Kan. at 248.
(6) Should Respondent receive probation instead of suspension?
Finally, Respondent attacks the hearing panel’s recommendation of a 1-year suspension and claims he is entitled to probation based on a proposed probation plan he submitted to the panel at the day of its evidentiary hearing. The panel rejected the proposed plan for two reasons.
First, the panel found Respondent failed to comply with Kansas Supreme Court Rule 211(g) (2008 Kan. Ct. R. Annot. 313) because he did not implement the plan before the hearing and because his proposed plan was not substantial, detailed, and workable. The panel noted Respondent did not even locate a probation supervisor until 2 days before the hearing on the formal complaint. Just as importantly, the panel also found probation would not correct all of Respondent’s misconduct and would not serve the interests of the legal profession or the state because Respondent engaged in dishonest conduct.
We note the panel’s recommendation for discipline is advisory only, and it does not constrain this court from imposing a greater or lesser penalty. In re Dennis, 286 Kan. 708, 737, 188 P.3d 1 (2008); Rule 212(f) (2008 Kan. Ct. R. Annot. 327). In this matter, we accept the hearing panel’s recommendation.
Respondent failed to meet the procedural and substantive requirements for submitting a plan under Rule 211(g)(1). These requirements must be satisfied before the hearing panel can recommend probation. Respondent failed to do this.
In addition, the panel found Respondent’s dishonest conduct could not be corrected by probation, and it was not in the interests of the profession or the citizens of Kansas to recommend probation. Rule 211(g)(3)(iii) bars the hearing panel from recommending probation if the panel finds the misconduct cannot be corrected by probation.
The panel’s conclusion is further supported by the ABA Standards. Under ABA Standards 4.42 and 6.22, suspension is appropriate when an attorney: (1) displays a pattern of neglect, causing injury or the potential for injury; (2) knowingly fails to perform services, causing injury or the potential for injury; and (3) knowingly violates a court order or rule. Respondent’s misconduct toward his clients clearly falls within the first two instances. He did not file an answer, return phone calls, or perform any work on his client’s behalf. Respondent’s decision to appear in Judge Powell’s court while his license was suspended violates the third instance.
It Is Therefore Ordered that the Respondent, Steven K. Woodring, be and he is hereby disciplined by suspension from the practice of law in Kansas for a period of 1 year effective upon the filing of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2008 Kan. Ct. R. Annot. 266), for violations of KRPC 1.1 (2008 Kan. Ct. R. Annot. 400) (competence); KRPC 1.3 (2008 Kan. Ct. R. Annot. 415) (diligence); KRPC 1.4 (2008 Kan. Ct. R. Annot. 432) (communication); KRPC 1.15 (2008 Kan. Ct. R. An-not. 493) (safekeeping property); KRPC 3.3 (2008 Kan. Ct. R. An-not. 531) (candor toward the tribunal); KRPC 5.5 (2008 Kan. Ct. R. Annot. 565) (unauthorized practice of law); KRPC 8.1 (2008 Kan. Ct. R. Annot. 579) (bar admission and disciplinary matters); and KRPC 8.4 (2008 Kan. Ct. R. Annot. 586) (misconduct).
It Is Further Ordered that the Respondent make restitution to D.V. and F.S. in the amount of $308 each.
It Is Further Ordered that the Respondent undergo a reinstatement hearing pursuant to Kansas Supreme Court Rule 219 (2008 Kan. Ct. R. Annot. 365) before he may be reinstated.
It Is Further Ordered that the Respondent comply with Supreme Court Rule 218 (2008 Kan. Ct. R. Annot. 350).
It Is Further Ordered that the costs of this action be assessed to the Respondent and that this order be published in the official Kansas Reports. | [
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|
The opinion of the court was delivered by
Schroeder, J.:
This is a replevin action by the administrator of an estate to recover certain personal property held by the defendant a stepdaughter of the decedent. Defense was based upon the ground that the decedent had given the property to the defendant before his death. Judgment was entered in favor of the defendant by the district court upon the general verdict of the jury, and appeal has been duly perfected by the administrator raising the questions hereinafter discussed.
The substantive question presented is whether the defendant’s evidence is sufficient to establish an inter vivos gift. A procedural question is also presented as to whether the district court was the proper forum in which to determine the issues raised by the pleadings.
The facts giving rise to this controversy are as follows: In September, 1909, Charles B. Hudson married the defendant’s mother, Gertrude. At that time the defendant was eight years of age, and she also had an older sister, Erma. Charles B. Hudson, his wife, Gertrude, and the two girls resided together as a family in Wichita, Kansas, until the defendant and her sister each married and established homes of their own. The defendant married E. S. Tucker in August, 1929, and has resided in Eureka, Kansas, since that time. Erma has lived in California for many years.
Charles B. Hudson was an attorney and practiced law in the City of Wichita for many years. He and his wife, Gertrude, resided together in a very close relationship for forty-six years until her death in 1955. There is testimony in the record that the relationship between them was perfect and they were very devoted to each other. Charles B. Hudson died the evening of May 29 or early morning of May 30,1959.
The defendant’s natural father died soon after her birth and the defendant knew no father other than Charles B. Hudson. She thought of him as her father and so referred to him in her testimony. Charles B. Hudson had no other marriages and no children of his own. He raised the two daughters of his wife, Gertrude, as his own children, and always referred to them as “his daughters” but never legally adopted them. According to the testimony of witnesses the same relationship existed between Charles B. Hudson and the defendant as between a natural father and daughter. After the defendant’s marriage and establishment of a home in Eureka, the defendant continued her close contact with her stepfather and her mother until the time of the death of each of them. After Gertrude s death, Charles B. Hudson received even greater comfort from his close relationship with the defendant. His letters to the defendant were quite affectionate and devoted.
The record discloses that Charles B. Hudson did not have much property in 1915, but he and his wife, Gertrude, jointly accumulated property during their marriage, consisting of suburban real property near Wichita, savings accounts in two separate building and loan institutions, a bank account, government bonds, corporate stocks, and an insurance policy insuring the life of-Charles B. Hudson. The bonds, insurance policy and corporate stocks are alleged in the plaintiff’s petition to be in the possession of the defendant. (After this action was instituted the insurance policy was surrendered to the insurance company, but the proceeds of such policy remain a matter in controversy.) The value of the reported assets of the decedent not here in controversy was approximately $26,000. The value of the assets in the defendant’s possession was alleged by the plaintiff to be $24,326.
Shortly after Gertrude died on September 5, 1955, Charles B. Hudson expressed his intention to dispose of all his property so that he would not need to make a will, and there is testimony that he was planning to make a gift to defendant. In the middle of August, 1956, the defendant and her husband were called on the telephone by Charles B. Hudson and asked to come to the City of Wichita to see him. They went to his office in the Schweiter Building, and the government bonds, corporate stocks and the life insurance policy were given by Charles B. Hudson to the defendant. In making the gift Charles B. Hudson expressly stated that he was giving these items to the defendant but retaining the interest, dividends or other income during his lifetime. The defendant accepted the insurance policy, stocks and bonds and placed them in her handbag.
The items delivered to the defendant consisted of 370 shares of Kansas Gas and Electric Company common stock, 106 shares of Kansas Power and Light Company common stock, $5,500 in Series “E” United States Savings Bonds, and an insurance policy with the Aetna Life Insurance Company for $5,000 payable to Mrs. Gertrude Hudson. At the time of this transaction Charles B. Hudson said these items were of the approximate total value of $30,000.
The defendant and her husband stayed that night in the home of Charles B. Hudson in Wichita, as was their custom when possible, and the gift was further discussed. Charles B. Hudson explained that all of the stocks and bonds stood in his name and Gertrude’s jointly, and to facilitate the mailing out of the dividends on the various corporate stocks he was going to transfer them to his name alone so the dividend checks would be payable to him instead of to him and his wife as had previously been done. He also said he might want to transfer the government bonds, which had matured, into interest-bearing bonds, if he should need this income. The defendant said this was perfectly acceptable to her and she suggested that he keep all the securities for her. He could then make the changes desired, and in that manner she would not need to take them back and forth between Eureka and Wichita.
Charles B. Hudson agreed to keep the securities and said he would put them in a safety deposit box in the Fourth National Bank so she could get in the box at any time she wanted, and if anything happened to him she was to go to the box immediately and remove the contents. On the 16th day of October, 1956, the defendant was in Wichita during banking hours and she and Charles B. Hudson went to the Fourth National Bank where the safety deposit box of Charles B. Hudson was changed. Both Charles B. Hudson and Mrs. E. S. Tucker signed a joint tenancy contract for the safety deposit box which contained a provision as follows:
“. . . In the event of the death of a joint lessee, the survivors severally or sole survivor shall have access to said box and the right to remove all contents, . . .”
The defendant was given a key to the box. On the same date the checking account of Charles B. Hudson was changed into a joint tenancy account with the defendant.
Approximately ten days after the death of Charles B. Hudson the defendant, being unable to locate her key to the lock box, had it drilled open and removed the contents which is the subject of this litigation. The bank authorities were satisfied that the defendant had the right to have the box drilled open, and so far as they were concerned, to remove the contents as she had done.
The defendant removed from the safety deposit box 370 shares of Kansas Gas and Electric Company stock issued to Charles B. Hudson on March 7, 1957, representing stock which was formerly owned by Charles B. Hudson and Gertrude C. Hudson as joint tenants, and the certificates evidencing such ownership were endorsed to and transferred by Charles B. Hudson individually as the surviving joint tenant. She removed 106 shares of Kansas Power and Light Company stock issued to Charles B. Hudson on March 8, 1957, representing stock which was formerly owned by Charles B. Hudson and Gertrude C. Hudson as joint tenants, and the certificates evidencing such ownership were endorsed to and transferred by Charles B. Hudson individually as the surviving joint tenant. She removed $5,500 worth of government bonds. These were the same bonds which were given the defendant in the deceased’s office in 1956. She also removed the insurance policy from the box. This was the same policy given to her in the deceased’s office in 1956.
Charles B. Hudson was survived by only two heirs, his nephew, Robert F. Hudson, who was the adopted son of a deceased brother, Clyde Hudson, and a sister, Mrs. Edna Fisk, who resides in California. It is conceded the defendant, a stepdaughter of Charles B. Hudson, deceased, is not an heir.
Upon the death of Charles B. Hudson, Robert F. Hudson was appointed administrator and commenced proceedings in the pro bate court of Sedgwick County, Kansas, to determine what had been in the safety deposit box in the Fourth National Bank of Wichita. The defendant furnished the administrator and' the probate court with a verified list of the contents of the box showing what securities were in the defendant’s possession. Thereupon the administrator procured an order authorizing him to bring this replevin action against the defendant in the district court of Greenwood County, Kansas.
By appropriate allegations the administrator alleged in his petition that he was entitled to the immediate possession of the personal property described, and that it was wrongfully detained by the defendant. The defendant denied the plaintiff had any interest whatsoever in and to any of the personal property described, and alleged that at all times material she was and is the owner of said property and entitled to the possession thereof because Charles B. Hudson in the year 1956 had made a gift to her of the property in question, that “Said gift was made orally by a delivery of all of said items of personal property to defendant.” The action was tried in March, 1960, before a jury which rendered a verdict for the defendant. Judgment was entered on the verdict and plaintiff’s motion for a new trial was overruled, whereupon appeal was duly perfected to this court by the plaintiff-administrator. (Where necessary for clarity we shall refer to the parties as they appeared below.)
The appellant first challenges the jurisdiction of the district court to determine the issues raised by the pleadings. The issue to which the appellant makes reference is the defense set up in the answer, which the appellant contends is a claim against the estate of Charles B. Hudson, deceased. It is urged such claim must be filed in the probate court.
The appellant argues the admitted and undisputed facts show that the deceased, at the time of his death on or about May 31, 1959, was the record title owner of all the securities for which this action was instituted; that these securities in the Fourth National Bank of Wichita, Sedgwick County, Kansas, were in a safety deposit box held in joint tenancy by the deceased and the defendant; and that since the joint tenancy and survivorship was in the box only and not in the contents, the defense in this case constitutes a Naim against the estate, and the district court is not the proper forum in which to present a claim against the estate of a deceased person.
Since the passage of the probate code in 1939, there have been numerous cases discussing the respective jurisdictions of the probate and district courts in controversies concerning assets which may or may not be a part of the estate of a decedent. One of the most frequently quoted cases is In re Estate of Thompson, 164 Kan. 518, 190 P. 2d 879. There the cases were divided into two categories: First, those in which the plaintiff sought to get something out of the estate, and second, those wherein an administrator or executor sought to bring property of some sort into the assets of the estate, or otherwise to realize something of benefit to the estate. In cases of the first class, it has uniformly been held the probate court has exclusive original jurisdiction. In the second class it has been held the action was properly brought in the district court.
Our answer depends upon whether the administrator was attempting to bring something into the estate or, on the other hand, whether the defendant was attempting to get something out of the estate. It is true the defendant could have turned all of the securities in her possession over to the administrator and then filed a claim in the estate to get them back, but the pleadings reflect that the defendant already had the securities in her possession, under a claim of ownership since 1956, and was not attempting to get anything out of the estate. The plaintiff-administrator was seeking to get these securities into the estate — to have them declared assets of the estate and distributed along with the other assets of the decedent to the heirs, after the payment of administration expenses.
The trial court noted the importance of the administrator’s action in the district court, which indicated a recognition on the part of the administrator that the property was not in the estate.
In the Thompson case the action was brought by the administrator in the district court to enforce a contract with the defendant. The defendant challenged the jurisdiction of the district court. The court there discussed the importance of the “moving party” as follows:
“. . . Appellants [defendants] suggest, however, that if action to enforce a contract of this sort had been brought by them,- the proper forum, under our decisions, would have been the probate court, and they argue that there is no logical reason why jurisdiction of the probate court should depend upon the question of who is the moving party. The argument may seem plausible but it ignores, we think, some very material considerations. In the first place, if appellants were bringing an action to enforce a¡ contract made with the decedent it would mean that they were seeking to secure property constituting part of an estate being administered. But in the case before us the action is to bring property into the estate. It is the very opposite of a demand upon an estate. And of equal, if not of greater moment, is the fact that the code as construed requires that all demands upon the assets of the estate must he brought in the. probate court while no such requirement is made as to actions by the personal representative of the estate to add to or to enhance the assets of the estate.” (pp. 523, 524.)
In the Thompson case tihe action was held to be clearly within the second class and properly brought in the district court. While in that case, it is true, none of the property the executor sought to recover stood in the name of the decedent at the time of his death, this fact, as we shall presently see, is not a controlling factor in the instant case. In the Thompson opinion Egnatic v. Wollard, 156 Kan. 843, 137 P. 2d 188, relied upon by the appellant, was cited as being a case in which the plaintiff sought to get something out of the estate by attempting to enforce the terms of the contract.
Malcolm v. Larson, 158 Kan. 423, 148 P. 2d 291, relied upon by the appellant as being on all fours with the case at bar, is actually contrary to the appellant’s contention. There the administrator brought an action in the district court to recover the value of certain property which was allegedly converted by the defendant. The defendant filed a cross petition in order to recover his undivided one-half interest in other personal property which had been allegedly owned by the defendant and the decedent together, but sold by the administrator without an accounting to the defendant. It was held the cross demand could not be entertained in the district court because it was in fact a claim against the estate and had to be prosecuted in the probate court which had jurisdiction of the subject matter. It was also held the allegations of the cross petition did not plead a pure defense.
The case of In re Estate of Bourke, 159 Kan. 553, 156 P. 2d 501, is distinguishable on the ground that the administrator of the estate had possession of a number of items of real and personal property standing in the name of the decedent. It was held that another party, who claimed to have an interest in such property as a partner of the decedent, must necessarily file a claim in the probate court in order to .get those assets out of the estate.
A case similar to the instant action on the point presently under consideration is Coffey v. Shrope, 180 Kan. 621, 306 P. 2d 164. There an administrator brought an action in the district court to recover, in addition to other property, United States savings bonds, cash on hand in a checking account, and proceeds of the sale of wheat, which it alleged were wrongfully held by the defendant. The jurisdiction of- the district court was challenged by the defendant, but it was held the action was purely one to bring property into the estate and properly within the jurisdiction of the district court. (See, also, In re Estate of Weaver, 175 Kan. 284, 262 P. 2d 818.)
Contentions similar to those of the appellant were rejected in Hurley v. Painter, 180 Kan. 552, 306 P. 2d 184. The plaintiff brought a partition action against the defendant, who claimed title to the real estate by reason of an inter vivos gift coupled with delivery of possession. The plaintiff contended that inasmuch as record title to the real estate was in the decedent at the time of her death, the defendant’s claim, if he had one, was against her estate and the district court had no jurisdiction to determine the defense. In rejecting this contention the court said this was a partition action and therefore covered by the code of civil procedure.
Here the administrator of the estate claims the defendant has certain property which should be in the estate. In defending against this action the defendant claims to be the owner of the securities in question because they had been given to her during the lifetime of the decedent — three years before his death. The defendant, therefore, has the right to defend the action and show why she is entitled to keep possession. In defending, she is not attempting to get anything out of the estate, but merely to keep what she contends was given to her before the decedent’s death.
Was the evidence sufficient to establish a gift inter vivos to the defendant?
It is clear on appellate review that the Supreme Court does not determine the weight and credence to be given the oral testimony of the witnesses which is an exclusive function of the trier of the facts. (Rupp v. Rupp, 171 Kan. 357, 233 P. 2d 709.) The general finding made by the trier of the facts determines every controverted question of fact in support of which evidence has been introduced (Manville v. Gronniger, 182 Kan. 572, 322 P. 2d 789; and Dryden v. Rogers, 181 Kan. 154, 309 P. 2d 409), and a verdict or finding made by the trier of the facts and supported by evidence will not be disturbed on appeal (Hillebrand v. Board of County Commissioners, 180 Kan. 348, 304 P. 2d 517; and Hale v. Ziegler, 180 Kan. 249, 303 P. 2d 190).
The appellant is fully aware of the foregoing rules but takes the position that the facts in this case, concerning which there is no controversy, establish as a matter of law that the decedent in the instant case did not make a valid gift inter vivos.
The elements necessary to establish a valid gift inter vivos of personal property are (1) an intention to make a gift; (2) a delivery by the donor to the donee; and (3) an acceptance by the donee. (In re Estate of Baumstimler, 159 Kan. 316, 153 P. 2d 927; and 24 Am. Jur., Gifts, § 22, p. 741.)
It is conceded by the appellant that cases touching upon gifts inter vivos of personal property are always “fact” cases. There cannot be any doubt that the elements of intent, delivery and acceptance are usually questions of fact to be determined by the jury. (Hess v. Hartwig, 83 Kan. 592, 112 Pac. 99; Stevenson v. Hunter, 131 Kan. 750, 293 Pac. 500; Dewey v. Barnhouse, 75 Kan 214, 88 Pac. 877; and Barnhouse v. Dewey, 83 Kan. 12, 109 Pac. 1081.)
The appellant attaches some importance to the fact that the record tide of the securities in question was in the name of the decedent at the time of his death.
The instructions of the court informed the jury as follows:
“Instruction No. 10.
“You are instructed that in order to make a valid gift of corporate stocks, bonds or an insurance policy such as are the subject of this action, it is not necessary that there be an endorsement on the instruments or a written assignment thereof. It is necessary that there be an intention to make a gift by the person who is making it, and, in the absence of a written transfer or endorsement, an actual delivery of the instruments. There must also be an acceptance of the gift by the person receiving the same. A gift which is beneficial to their person receiving it is presumed to be accepted by such person unless such person is shown to have refused or rejected said gift.
“Instruction No. 11.
“A valid gift of personal property may be made even though the person making the gift retains the income from such property for himself for a period of time provided that the gift is absolute and irrevocable.
“Instruction No. 12.
“By delivery is meant the final and absolute transfer of the possession of personal property from one person to another whereby the one who gives the property relinquishes all dominion or control of such property and in such manner that it cannot be recalled by the one who gives.
“Instruction No. IS.
“You are further instructed that a gift of personal property is ordinarily not complete if the person making the gift retains possession. However, it does not defeat the gift if, after delivery of the items has been made the personal property is returned to the person making the gift for safekeeping for the benefit of the person receiving the gift.
“Instruction No. 14.
“You are further instructed that in order to make a valid gift of stocks, in a corporation, it is not necessary that there be a transfer of such stocks on the books of such corporation, provided the other elements of intent, delivery and acceptance are present as defined in these instructions.”
Though some objection was made to certain of the above instructions at the trial, the motion for a new trial, as reflected by the abstract, does not assign as trial error the giving of the foregoing instructions. Furthermore, the appellant’s specification of error on the submission of instructions to the jury has been abandoned in his brief. Under these circumstances, it must be presumed the foregoing instructions are correct, and they become the law of the case. (See, Kitchen v. Lasley Co., 186 Kan. 24, 348 P. 2d 588; and In re Estate of Cross, 186 Kan. 590, 352 P. 2d 427.) For authorities concerning the law suggested by the instructions see Culp v. Mulvane, 66 Kan. 143, 71 Pac. 273; 38 C. J. S., Gifts, § 46, p. 826; State v. Kuthy, 71 N. E. 2d 133; Bolles v. Trust Co., 132 O. S. 21, 4 N. E. 2d 917; Fletcher Cyclopedia Corporations, Vol. 12A, §§ 5683 to 5685 (transfer of corporate stocks); Stepson v. Brand, 213 Miss. 826, 58 So. 2d 18; 38 C. J. S., Gifts, § 53; p. 838; 24 Am. Jur., Gifts, § 70, p. 766; 47 A. L. R. 738 (transfer of insurance policies); Ariett v. Osage County Bank, 120 Kan. 286, 242 Pac. 1018; Grant Trust, etc., Co. v. Tucker, 49 Ind. App. 345, 96 N. E. 487; Moore v. Brodrick, 123 F. Supp. 108; and Union National Bank v. Jessell, 358 Mo. 467, 215 S. W. 2d 474 (transfer of government bonds).
The relationship of the parties is an important factor in determining the sufficiency of the evidence to sustain the finding of the jury that a valid inter vivos gift was made. Where the relationship of the parties is such that the donee has a natural claim on the generosity of the donor, the courts look with favor on the claim of gift and, generally speaking, less evidence is required to support a gift to a close relative than would be necessary to sustain one to a stranger. The rule favoring claims of gifts to persons having a natural call on the generosity of the donor finds frequent application where gifts are made by a parent to a child. (38 C. J. S., Gifts, § 67c, p. 882; Schwindt v. Schioindt, 61 Kan. 377, 59 Pac. 647; Hess v. Hartwig, 83 Kan. 592, 112 Pac. 99; and Hurley v. Painter, 180 Kan. 552, 306 P. 2d 184.)
The facts heretofore related disclose that the relationship between the decedent and the defendant was equivalent to that of father and daughter. The manager of the apartment hotel where the decedent resided testified that the decedent was very talkative. He said the decedent hung around the desk quite often and talked of the defendant and her sister, but never mentioned Robert F. Hudson, who was a nephew, although both the decedent and his nephew were attorneys practicing law in the City of Wichita, Kansas. In fact, the manager testified he did not know the decedent had a nephew until his death. According to the manager’s records, the defendant was to be notified in the event the decedent had any difficulty while living at the apartment hotel.
There is no question from the evidence that the defendant was virtually all the family the decedent had at the time the gift was made, and that the defendant was the natural object of his bounty. While these facts do not determine whether a valid gift was made, they have a definite bearing upon the sufficiency of the evidence to uphold the verdict of the jury on the matter of the decedent’s intention to make a gift inter vivos.
The record discloses substantial evidence in corroboration of the intention of the decedent to make a gift to the defendant, and of the fact that he had made it. The evidence shows that the decedent would send the defendant the premium receipts on the insurance policy so she would know it was in force, and so she could take care of paying the premium herself if anything prevented him from doing so. After each payment of the insurance premium the receipt was sent to the defendant with a letter from the decedent.
Another witness, Mona Clemons, was a very close friend of the decedent and his wife, Gertrude. She testified that in the latter part of 1957 the decedent advised her of the possibility of saving death taxes by giving up to $3,000 annually, and $30,000 at one time, in property to her daughter. In relating these facts to the witness, the decedent stated he had given $30,000 worth of securities to his daughter, Marguerite (the defendant), because it would save death taxes.
At the time the bank box of the decedent was changed to a joint tenancy box with the defendant, the decedent also changed his checking account in the same manner and made it a joint tenancy account with the defendant. No checks were written on this account by the defendant during the lifetime of the decedent, but she closed the account after his death. The funds in this account were not claimed by the appellant.
The appellant challenges the gift in question primarily on the ground, and the appellant contends, that the decedent did not part with full dominion and control over the securities in question. It is therefore charged the gift was not absolute and irrevocable. (Calvin v. Free, 66 Kan. 466, 71 Pac. 823; and Instructions No. 11 and No. 12.)
The evidence is uncontradicted that the decedent in August, 1956, when he called the defendant and her husband to his office in Wichita, took the stock certificates, bonds and insurance policy from a manila envelope in his desk and described and discussed these securities when he manually handed them to the defendant. These securities were then given to the defendant subject to his right to retain the interest, dividends or other income so long as he lived. On this occasion the securities were accepted by the defendant, put into her handbag and retained by her. It is not denied that after this delivery to the defendant, the securities were later returned to the decedent who placed them in a bank box, owned jointly by the decedent and the defendant, and transferred the Kansas Gas and Electric Company and Kansas Power and Light Company stock, which had been standing in the name of himself and Gertrude Hudson jointly, to his own name. These facts, unexplained, would possibly have justified the jury in concluding that the decedent had not parted with full dominion over the property. However, the circumstances under which the decedent performed these acts were explained by other evidence which was sufficient to authorize the jury to find that such acts, performed by the decedent, were entirely consistent with a completed gift to the defendant at the time alleged.
The general rule is stated in 24 Am. Jur., Gifts, § 38, p. 752, as follows:
“It follows from the necessity for delivery that, generally, a gift inter vivos is not perfected if a donor retains control of the property. . . . However, the custody of property, after an alleged completed gift, is subject to explanation, since it may bear upon the question whether there has been an executed gift, retention of the gift not being necessarily incompatible with the donee’s dominion of the property. For example, under some circumstances, when all the other requisites of a gift are present, the donor may, by declarations or otherwise, constitute himself a trustee of the property for the benefit of the donee, and in such case it is well settled that no further delivery is necessary . . .”
The foregoing is the law in Kansas. In Hess v. Hartwig, supra, Syllabus ¶ 2 reads:
“While a complete and unconditional delivery is essential to the validity of a gift, a constructive or symbolic delivery will meet the requirements of the law; and where there is a delivery the fact that the property may be redelivered to the donor as agent or trustee of the donee, or for safe-keeping, will not nullify or affect the gift.”
The same principle was discussed in Stevenson v. Hunter, 131 Kan. 750, 293 Pac. 500, where the donor retained the dividends until her death. In Pohl v. Fulton, 86 Kan. 14, 119 Pac. 716, it was held the requirement of delivery was satisfied by the donor creating himself a trustee of the gift for the benefit of the donee. Also, in Barnhouse v. Dewey, 83 Kan. 12, 109 Pac. 1081, the donor was held to be a trustee for the donee. (See, Calvin v. Free, supra.) Reference is made to Ariett v. Osage County Bank, 120 Kan. 286, 242 Pac. 1018, for careful study regarding gifts inter vivos, and for a discussion of the rules where the donor constitutes himself trustee for the benefit of the donee. The appellant relies upon this case but we do not regard the factual situation there presented as controlling in the instant case.
The appellant cites many cases in which he contends it was held the facts did not establish gifts inter vivos. (Gallagher v. Donahy, 65 Kan. 341, 69 Pac. 330; Mahoney v. Martin, 72 Kan. 406, 83 Pac. 982; Barnhouse v. Dewey, 83 Kan. 12, 109 Pac. 1081; Billings v. Bishop, 130 Kan. 453, 286 Pac. 221; Knox v. El Dorado National Bank, 137 Kan. 500, 21 P. 2d 353; In re Estate of Brown, 159 Kan. 408, 155 P. 2d 445; and In re Estate of Boller, 173 Kan. 30, 244 P. 2d 678.) The factual situations presented by these cases are readily distinguishable from the instant case, when the full context of these opinions is studied.
The appellant argues:
“The theory of the defendant in this case is that when she gave the securities back to the deceased, that she therefore constituted him as trustee for her. The question then arises in just what way was he trustee for the defendant? He had told her that he might sell the United States Government bonds and that he might also transfer the stocks so that he could receive the dividends thereon. For whose benefit was the trust established? Certainly not the defendant, as evidenced by the fact that at the date of the death of deceased, they (the stocks) had been transferred out of the names of the deceased and his wife and into the name of the deceased, solely. Therefore, if there was nothing to be done by the deceased in his capacity as trustee, then no trust resulted.”
The evidence in this case is sufficient to establish that actual delivery was completed literally and accepted by the defendant. There is substantial evidence of intention to make a gift and the act of completing it. Subsequently, there is evidence that the securities were redelivered to the donor for the purpose of being held in safe keeping for the donee and to further enable the donor to make some changes in the record title of the securities, pursuant to an agreement with the donee, to enable the donor to enjoy the life income which he reserved without inconveniencing the donee. This is not inconsistent with the completion of the gift, and on appropriate instructions the case was submitted to the jury for its determination.
It is not the contention of the appellee that the gift was made by depositing the securities in the joint safety deposit box, but that it was made in tire office of the decedent upon delivery of the securities. The establishment of a joint safety deposit box merely corroborates the fact that the gift was made and reveals that possession of the securities by the decedent was not for his benefit alone, but for the benefit of the defendant.
Analyzed in terms of the duties of the decedent as trustee, it must be recognized that the gift to the' defendant was a capital gift only, and not a gift of the income which was reserved by the donor. The duty of the donor as trustee, therefore, was to hold the corpus of the trust intact for the donee until the death of the donor, without invasion or dissipation of the corpus by the donor for the remainder of his life. The power of the donor, pursuant to an agreement with the donee, to change the record title of these securities, to facilitate his collection of the life income reserved for himself, and for the convenience of the donee, does not alter the donor’s obligation as trustee to hold the corpus of the trust intact for the donee.
The retention of the income does not affect the validity of a gift. (Stevenson v. Hunter, 131 Kan. 750, 293 Pac. 500; 38 C. J. S., Gifts, § 38, p. 817; Fletcher Cyclopedia Corporations, Vol. 12A, § 5683, et seq.; and instruction No. 11.)
It has been held that where a deed is effectively delivered the fact that it is handed back to the grantor for some purpose does not affect the delivery. (Stump v. Smarsh, 153 Kan. 804, 113 P. 2d 1058; Cole, Administrator v. Hoefflin, 187 Kan. 66, 354 P. 2d 362; see, also, Reed v. Keatley, 187 Kan. 273, 356 P. 2d 1004.)
We hold the evidence in the instant case was sufficient to sustain the finding of the jury that the decedent made a valid inter vivos gift of the stocks, bonds and insurance policy in question to the defendant.
The appellant contends the trial court should have sustained his motion for a new trial on the ground of newly discovered evidence. The newly discovered evidence was introduced at the hearing on the motion for a new trial and consists of the testimony of LeRoy McAdam, the officer in charge of the safety deposit boxes at the Fourth National Bank, who has testified during the course of the trial. Nothing is indicated by this proposed evidence to show that the verdict of the jury was wrong in whole or in some material part. (G. S. 1949, 60-3004.) Furthermore, with reasonable diligence this newly discovered evidence could have been discovered and produced at the trial. (G. S. 1949, 60-3001, Fifth.) The appellant’s point that he is entitled to a new trial on the ground of newly discovered evidence is therefore not well taken.
The judgment of the lower court is affirmed.
Wertz, J., not participating. | [
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The opinion of the court was delivered by
McFarland, J.:
This consolidated case involves four appeals filed by Northwest Central Pipeline Corporation (Northwest Central) in cases where judicial review was being sought of certain actions by the Kansas Corporation Commission (KCC) relative to infill drilling in the Kansas Hugoton Field. Each of the four appeals was dismissed on procedural grounds by the respective district court and Northwest Central appeals therefrom.
CHRONOLOGY OF EVENTS
July 31, 1984
— Cities Service Oil and Gas Corporation filed application with KCC to amend its basic proration order to permit infill drilling in the Kansas Hugoton Field.
April 24, 1986
— KCC order filed permitting infill drilling.
May 5-8, 1986 — Various motions for rehearing filed by interested parties including Northwest Central.
May 15, 1986 — KCC grants rehearing, permitting introduction of additional evidence only on some issues.
May 22, 1986 — Panhandle Eastern Pipe Line Company files motion with KCC seeking clarification of May 15, 1986, order relative to whether, for judicial review purposes, certain portions of the April 24, 1986, order were final orders.
May 27, 1986 — KCC order filed relative to May 22,1986, motion in which KCC states no part of the April 24, 1986, order is a final order.
June 16, 1986 — Northwest Central files actions in Shawnee County and Gray County district courts seeking judicial review of KCC’s order of April 24, 1986, permitting infill drilling (appeal Nos. 59,735 and 59,738).
July 18, 1986 —KCC’s order on rehearing filed at 1:15 p.m. which triggered the following filings on the same date:
(1) Southwest Kansas Royalty Owners Association files for judicial review in Stevens County District Court at 1:16 p.m.
(2) Northwest Central files for judicial review in Shawnee County District Court at 2:22 p.m. (appeal No. 60,187).
July 31, 1986 — Northwest Central files motion with KCC seeking rehearing on the July 18, 1986, order on rehearing.
August 6, 1986 — (1) Rehearing of rehearing order denied by KCC.
(2) Northwest Central files an action in Shawnee County District Court seeking judicial review of all KCC orders relative to the Cities Service application for infill drilling including denial of Northwest Central’s “rehearing of rehearing” motion.
The above listing provides the basic sequence of events involved in the consolidated appeals herein. Additional facts will be stated as needed for discussion of particular issues.
ISSUE I. DID THE RESPECTIVE DISTRICT COURTS ERR IN DISMISSING EACH OF THE FOUR ACTIONS HEREIN ON PROCEDURAL GROUNDS?
APPEAL NOS. 59,735 and 59,738
These two petitions for judicial review were filed the same day (June 16, 1986) in the Shawnee and Cray county district courts (86-C-849 and 86-C-24 respectively) and are essentially identical. In each case the action was dismissed on the ground it was premature. More particularly, the courts held that the KCC’s April 24, 1986, order was not a final order by virtue of the granting of the rehearing on May 15, 1986, as clarified by the May 27, 1986, KCC order. As the application was still pending before the KCC, no final agency action had been taken. Northwest Central contends, alternatively, that:
1. The April 24, 1986, order was final as to all matters upon which the KCC did not permit the introduction of additional evidence upon rehearing.
2. The failure of the KCC to permit additional evidence on all aspects of the original order upon rehearing rendered the granting of rehearing a nullity, thereby making the April 24, 1986, order a final agency action.
Neither contention has any merit. The effect of the first contention would be to allow piecemeal judicial review of the KCC actions on matters before it. Assume an order covers ten issues. The KCC then has second thoughts or reservations concerning its determination on the first issue and grants rehearing for the purpose of hearing additional evidence and argument on that issue. Intervenor A might not like the determination of issue two and seeks judicial review thereof. Intervenor B might not like what the KCC did on issue four and seeks judicial review thereof, and so on. The result would be piecemeal judicial review actions pending in various courts while the KCC is still concerned with the rehearing of its order. Obviously, the KCC would be limited on the rehearing to the first issue and would be unable to modify any other part of its original order even if a modification of the first issue would necessitate modification of other parts of the original order. The result would be a procedural nightmare that would seriously diminish the KCC’s ability to function. There is no statutory authority for piecemeal judicial review of the KCC order herein. The parties concede that judicial review of the KCC’s action herein can only be had by filing a petition for judicial review within 30 days after a final order has been entered. The specific statutes relative to judicial review will be discussed in a later issue. The question before us in this issue is when the agency action, or parts thereof, became final.
The alternative contention that the failure of the KCC to throw the door open to additional evidence on all issues rendered the granting of the rehearing a nullity is equally untenable. The issues raised by the application were complex and the hearing thereon lasted some 56 days, involving over 100 witnesses and 12,000 pages of transcript. The May 15, 1986, order stated the KCC had enough evidence in all but limited areas and limited new evidence to those areas. There is nothing weird about such a limitation. To hold otherwise could have greatly delayed final determination of the application for no useful reason. Appellate courts frequently limit submission on rehearing which focuses attention on the area of concern. This does not result in the balance of the appellate opinion becoming final or the granting of the rehearing a nullity.
The order of May 15,1986, granting rehearing caused the April 24, 1986, order in its totality not to be a final agency action. The May 27, 1986, order clarifying the order granting rehearing merely spelled out that which was inherent in the May 15, 1986, order — namely, that no part of the April 24, 1986, order was a final agency action. Hence, no judicial review of any portion of the April 24, 1986, order (or the order of May 15, 1986, granting rehearing) was permissible until the order on rehearing was filed (July 18, 1986). The district courts involved in these two appeals were clearly correct in dismissing these two actions for judicial review filed on June 16,1986, as being premature on the grounds no final order of agency action had been taken.
APPEAL NO. 60,187
On July 18, 1986, at 1:15 p.m. the KCC entered its order upon rehearing. At 1:16 p.m. the same day, Southwest Kansas Royalty Owners Association filed an action in Stevens County District Court (86-C-30) seeking judicial review thereof. The Stevens County case is not before us. At 2:22 p.m. of the same day, Northwest Central filed its action for judicial review in Shawnee County District Court (86-C-1010). This case was dismissed on the ground the Stevens County District Court had first acquired jurisdiction. This determination is in accord with K.S.A. 1986 Supp. 55-606(a) which provides that an “action for review shall be brought in the district court having venue and first acquiring jurisdiction of the matter.” Clearly, the Stevens County District Court action was filed prior to the Shawnee County action and thus Stevens County first acquired jurisdiction as between these two petitions. Northwest Central does not argue that its July 18, 1986, appeal (86-C-1010) is prior to the Stevens County case. Rather, it contends one or more of its other three petitions for judicial review was or were proper and that July 18, 1986, was nota legally permissible time for seeking judicial review. Under no theory of Northwest Central would its July 16, 1986, petition for judicial review be valid, but it has appealed from its dismissal (60,187) apparently as a matter of routine procedure.
We find no error in the district court’s dismissal of Northwest Central’s July 18, 1986, petition for judicial review.
APPEAL NO. 60,143
The KCC entered its order on rehearing on July 18, 1986. On July 31, 1986, Northwest Central filed a motion seeking rehearing on the rehearing order. This motion was denied by the KCC on August 6, 1986. Northwest Central filed for judicial review in Shawnee County on the same day (86-C-1084). The district court dismissed the petition on the ground that jurisdiction lay in Stevens County in case No. 86-C-30 filed July 18, 1986. Northwest Central appeals from said dismissal in appeal No. 60,143.
Northwest Central contends that, inasmuch as the KCC’s July 18, 1986, order on rehearing substantially modified its April 24, 1986, order that it had the duty to seek modification thereof via a motion for rehearing and that the time for judicial review did not commence until the motion was denied on August 6, 1986.
In support of its position, Northwest Central cites K.S.A. 1986 Supp. 66-118b, which provides in pertinent part:
“No cause of action arising out of any order or decision of the commission shall accrue in any court to any party unless such party shall make application for a rehearing as herein provided. Such application shall set forth specifically the ground or grounds on which the applicant considers such order or decision to be unlawful or unreasonable. No party shall, in any court, urge or rely upon any ground not set forth in the application. An order made after a rehearing, abrogating, changing or modifying the original order or decision, shall have the same force and effect as an original order or decision, including the obligation to file an application for rehearing, as provided in this section, as a condition precedent to filing an action for review thereof.” (Emphasis supplied.)
The difficulty with applying this statute is that K.S.A. 1986 Supp. 66-118b applies to KCC proceedings involving public utilities. The proceedings herein are not brought under the act of which K.S.A. 1986 Supp. 66-118b is a part. The statutory requirement of seeking a rehearing of a rehearing order is not contained in the judicial review statutes applicable herein. K.S.A. 1986 Supp. 55-606 provides in pertinent part:
“(a) Any action of the commission pursuant to K.S.A. 55-601 through 55-609, and amendments -thereto, is subject to review in accordance with the act for judicial review and civil enforcement of agency actions. The action for review shall be brought in the district court having venue and first acquiring jurisdiction of the matter. Notwithstanding the provisions of K.S.A. 77-622 and amendments thereto, the authority of the court shall be limited to a judgment either affirming or setting aside in whole or in part the agency action.
“(b) Before any action for judicial review may be brought by a person who was a party to the proceeding resulting in the agency action, a petition for rehearing shall first be filed with the commission within 10 days from the date of the agency action in question. The rehearing shall be granted or denied by the commission within 10 days from the date the petition is filed and if not granted within 10 days it shall be taken as denied. If a rehearing is granted the matter shall be set for hearing as promptly as convenient and shall be determined by the commission within 30 days after it is submitted.
“An action for judicial review may be brought by any person aggrieved by the agency action, whether or not such person was the applicant for rehearing. If no petition for rehearing is filed, any person aggrieved by the agency action who was not a party to the proceeding before the commission may bring an action for judicial review of such agency action.
“(c) Any action for review pursuant to this section shall have precedence in any court and on motion shall be advanced over any civil cause of different nature pending in such court. In any such action, a county abstract may be filed by the commission or any other interested party.” (Emphasis supplied.)
K.S.A. 1986 Supp. 55-606 refers to the act for judicial review and civil enforcement of agency actions, K.S.A. 77-601 et seq. K.S.A. 1986 Supp. 77-613(b) provides:
“A petition for judicial review of an order is not timely unless filed within 30 days after service of the order, but the time is extended during the pendency of the petitioner’s timely attempts to exhaust administrative remedies.”
Northwest Central argues that its motion for rehearing of the rehearing order was a timely attempt to exhaust its administrative remedies and it had 30 days after the denial thereof to seek judicial review. Under this logic, Northwest Central contends it can nullify the effect of its loss of the July 18, 1986, footrace to the courthouse by simply filing another motion for rehearing. This is an unreasonable position to assume. The act for judicial review, of which K.S.A. 1986 Supp. 77-613(b) is part, is a broad act covering all manner of agency actions, the vast bulk of which concern one party’s dealings with an agency. In the matter before us, a large number of parties intervened in the proceeding on the Cities Service application seeking amendment of its basic proration order to permit infill drilling. A major policy of the KCC was at issue, the determination of which would have far-reaching effects on the production of natural gas in Kansas. K.S.A. 1986 Supp. 55-606 establishes the procedure by which rehearing of the order herein may be obtained and does not authorize a rehearing on a rehearing. The July 18,1986, order on rehearing was a final order and the Stevens County District Court acquired jurisdiction of the judicial review thereof on July 18, 1986, pursuant to K.S.A. 1986 Supp. 55-606(a). Northwest Central has sought and received permission to intervene in the Stevens County action and obtain judicial review of all or any portion of the first KCC order.
We conclude the Shawnee County District Court properly dismissed 86-C-1084 on the ground the Stevens County District Court had first acquired jurisdiction of the matter in issue.
ISSUE NO. 2. WERE NORTHWEST CENTRAL’S DUE PROCESS RIGHTS VIOLATED BY THE PROCEDURES HEREIN?
This issue is an amalgam of complaints concerning what Northwest Central perceives to be egregious treatment it has received from the KCC. In its lachrymose recital of the KCC’s actions herein, Northwest Central contends its due process rights have been violated. The logic of Northwest Central’s argument is, however, difficult to follow. Northwest Central does not contend it was in any manner restricted or deprived of the opportunity for full hearing before the KCC prior to the entry of the KCC’s order of April 24, 1986. The shabby treatment complaints all arise in connection with the granting of the rehearing and Northwest Central’s untimely petitions for judicial review. Northwest Central contends, in essence, it had a right to have the KCC review all issues on rehearing and that the KCC only reviewed certain issues. There is no right to a rehearing — the granting or denial of a rehearing is discretionary with the KCC. Under its order granting rehearing, the KCC could have changed any part of its April 24, 1986, order although the introduction of additional evidence and subsequent oral argument was limited to certain areas. Northwest Central has no due process right to have all issues reviewed on rehearing before the KCC.
As far as judicial review is concerned, such review is statutory. There is no due process right for each interested party to have judicial review in the district court of each party’s choice. Judicial review was obtained in the Stevens County District Court as the court first acquiring jurisdiction under K.S.A. 1986 Supp. 55-606(a). Northwest Central does not contend that it was limited in any way from full participation therein.
We conclude this issue is without merit.
The judgments are affirmed.
Lockett, J., concurs in the result. | [
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The opinion of the court was delivered by
Miller, J.:
The plaintiffs, Stanley C. Johnston and his wife Mary A. Johnston, appeal from the entry of summary judgment against them and in favor of the defendants, Robert L. Elkins, M.D., and Community Group Health Plan. Essentially, this is a malpractice action arising out of an unsuccessful bilateral vasectomy performed by Dr. Elkins on Mr. Johnston. Dr. Elkins tested Mr. Johnston after the surgery and informed him he was sterile. Thereafter, Mrs. Johnston became pregnant. Plaintiffs seek to recover damages incident to the pregnancy and childbirth. The issues are whether plaintiffs have asserted a valid cause of action, and if so, the extent of damages recoverable.
When summary judgment is challenged on appeal, we must review the record in the light most favorable to the party who defended against the motion for summary judgment. Werner v. Kliewer, 238 Kan. 289, 292-93, 710 P.2d 1250 (1985); Credit Union of Amer. v. Myers, 234 Kan. 773, Syl. ¶ 1, 676 P.2d 99 (1984). With that rule in mind, we state the facts most favorable to the plaintiffs.
Dr. Elkins, a physician and surgeon, performed a vasectomy on Mr. Johnston on July 19, 1984. One month later, he examined a semen sample of Mr. Johnston and informed him that he was sterile as a result of the surgery. Dr. Elkins is an agent and employee of Community Group Health Plan d/b/a Prime Health. Prime Health’s guidelines call for two post-operative semen examinations before a determination of the successfulness of the surgery may be made. Elkins informed the plaintiffs that he required only one test. Relying on Dr. Elkins’ advice, plaintiffs stopped using contraceptives. Mrs. Johnston became pregnant in late September 1984, and a follow-up examination of Mr. Johnson’s semen in October indicated the presence of sperm. On May 31,1985, Mrs. Johnston gave birth to anormal, healthy baby, the couple’s fifth child. On July 15, 1985, Mr. and Mrs. Johnston commenced this action. They alleged various acts of negligence, all arising out of the acts, advice, and post-surgical testing by Dr. Elkins. They alleged that defendants’ negligence caused them physical and emotional stress, health care expenses, and pain and suffering associated with pregnancy and childbirth. They sought damages of one million dollars.
Prime Health moved for summary judgment, contending that Dr. Elkins was an independent contractor, not Prime Health’s agent or employee. Dr. Elkins also moved for summary judgment, claiming that due to the fact that the child was normal and healthy, the plaintiffs are without a legal cause of action in this state. The trial judge sustained both of the motions for summary judgment on the ground that wrongful pregnancy does not constitute a valid cause of action in Kansas. The judge recognized that Prime Health did not move for summary judgment on that particular ground, but characterized the ruling as to that defendant as a dismissal for failure to state a claim upon which relief can be granted. If the action fails against Dr. Elkins, then even if there is an agency relationship, it must fail against Prime Health.
The issue before us is whether we recognize this cause of action however it be labeled, and if so, then the extent of the recoverable damages.
We have recently decided two cases which bear upon the issues raised here, and we shall discuss those opinions briefly. In Byrd v. Wesley Med. Center, 237 Kan. 215, 699 P.2d 459 (1985), the plaintiff mother became pregnant and gave birth to a normal, healthy child after an obviously unsuccessful tubal ligation had been performed upon her for the purpose of preventing her from having any more children. She sued the hospital where the unsuccessful sterilization procedure was performed, and she sought damages, including the cost of rearing her child to majority. The sole issue before us in Byrd was stated in the first paragraph of the opinion as follows:
“When a normal, healthy child is born to a mother upon whom an unsuccessful sterilization procedure has been performed, are the costs of rearing and educating the child items of damage which are recoverable in a medical negligence action? That is the primary question posed in this proceeding.”
We were careful to point out in Byrd that we were not concerned with ordinary damages arising from a claim of medical malpractice in a performance of a sterilization operation — the expense of the unsuccessful operation, the pain and suffering of the patient, any medical complications caused by the unsuccessful surgery, or by the pregnancy, the cost of delivery, lost wages, or loss of consortium.
We carefully considered the views expressed in the opinions of courts of other jurisdictions dealing with the problem, and adopted the majority rule: In a medical malpractice action for negligent sterilization, the projected cost of rearing a normal, healthy child to majority may not be recovered.
In the course of the opinion we said:
“[W]e cannot recognize actions for wrongful birth or wrongful conception of a normal, healthy child. The birth of a normal, healthy child may be one of the consequences of a negligently performed sterilization, but we hold that it is not a legal wrong for which damages should or may be awarded.” 237 Kan. at 225.
The second recent case is Bruggeman v. Schimke, 239 Kan. 245, 718 P.2d 635 (1986). Schimke was an action for wrongful life, instituted on behalf of a minor by his natural mother and next friend. His parents, having a daughter who was born with multiple congenital anomalies, sought genetic counseling from the defendants and were advised that their first child’s condition was not due to any known chromosomal or measurable biochemical disorder. It was alleged that the defendants were negligent in so advising the parents. Relying upon that advice, the parents proceeded to have another child, the plaintiff, a severely impaired person from the time of birth. He sought damages for injury, pain, mental anguish, and past and future extraordinary expenses for medical, surgical, nursing, and hospital care. Upon examining the authorities from various states, we concluded and held that a cause of action for wrongful life is not recognized in this state.
The petition in the case now before us was obviously drafted with a view to our opinion in Byrd. Plaintiffs here are not seeking the full cost of rearing their child; they do not claim damage because of the birth of the child; rather, they are seeking other damages with which we were not concerned and which we did not address in Byrd. We will discuss the matter of damages later in this opinion.
This action could be characterized as one for “wrongful pregnancy.” We define such an action in Syl. ¶ 1 of Bruggeman, 239 Kan. 245, as follows:
“Wrongful pregnancy refers to those cases where parents of a healthy child bring a claim on their own behalf for the monetary and emotional damages they suffered as a result of giving birth to an unwanted child.”
The plaintiffs, in their petition, have stated a claim for medical negligence or malpractice in performing the unsuccessful vasectomy upon the husband and in the sperm testing and advice which followed, resulting in the pregnancy of the wife and her subsequent hospitalization for childbirth and a tubal ligation. We prefer to characterize the action as one for medical negligence in the performance of surgery and in post-operative care and advice. When viewed in that light, it is an action by a patient and his wife against a physician for negligence in the performance of a surgical procedure, and in testing and counseling thereafter. We hold that such an action may be maintained in this state.
There are at least four policy considerations which we should discuss. These are (1) the propriety of immunizing physicians from liability in the field of sterilization; (2) the propriety of allowing any damages incident to the birth of the child in the light of the high value placed upon human life; (3) the constitu tional protection afforded an individual’s choice not to procreate; and (4) the potential for increased litigation.
The failure to recognize a cause of action against a physician who negligently performs surgical sterilization procedures would be a grant of absolute immunity to a physician whose negligence results in injury to the patient. We decline to grant such immunity. We see no reason why a physician who performs such surgery should be held to a lesser standard of care than a physician or surgeon who performs any other surgical procedure. Such a ruling could lead to a decrease in the standard of care, and would leave victims of professional negligence without a remedy. A physician who assumes responsibility for a sterilization procedure at the request of a patient assumes a professional duty to render appropriate service, including testing and advice regarding the procedure, exercising the same standard of care applicable to other members of the medical profession in the community. A physician is not required to guarantee the success of the procedure. Failure of the physician to achieve success does not automatically indicate negligence. He or she is only required to exercise the required standard of care during the surgery and in later attempting to verify the success or failure of the procedure and to appropriately advise the patient. Immunizing physicians from liability for negligence in this area would be contrary to public policy, and we decline to do so. We simply hold such physicians to the standard of care required of all members of the same school of medicine in the community in which they practice. Such a physician is answerable only if negligence in the performance of the services is established by proof.
Should the recovery of damages be allowed in light of the high value placed upon human life? As we held in Byrd, the birth of a normal, healthy child is not a legal wrong for which damages may be awarded. While the birth of a normal, healthy child is alleged to be one of the consequences of Dr. Elkins’ alleged negligence, that child is not considered an item of damage in the present action. Rather, plaintiffs seek recovery of other damages which they claim are the natural, probable, and direct consequences of professional negligence. To permit them to recover compensation for damages arising out of the alleged professional negligence does not contravene this court’s policy of placing a high value on human life.
The United States Supreme Court has recognized that the choice not to procreate is constitutionally protected as a part of a person’s right to privacy. This protection has been applied to protect a person’s right to use contraceptives, Eisenstadt v. Baird, 405 U.S. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029 (1972); Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965), and to procure abortions, Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973). These cases merely tell us it is permissible for the Johnstons to choose not to have more children. The constitutional principles enunciated in those cases, however, do not determine the issues here. The Johnstons were not denied the right to be sterilized; the procedure that was performed was simply not effective. We see no constitutional issue here, and no constitutional bar to this action.
Finally, Dr. Elkins suggests in his brief that, should this court accede to appellants’ request and reverse the lower court, “a surprising number of newborn infants in Kansas will suddenly become unwanted. Litigation will increase as the miracle of birth is transformed into the tort of unsuccessful sterilization.” While litigation in this area may increase, the possibility of increase is limited to those parents who have been injured through another’s negligence. Dr. Elkins’ brief suggests that new parents throughout Kansas will suddenly sue their physicians. This cause of action will only be available to persons who have undergone negligent and unsuccessful sterilization procedures or who have been subjected to negligent post-operative procedures of advice. It seems unlikely that there will be any great proliferation of such claims. At any rate, the potential for some increase in litigation cannot justify a refusal to recognize a valid cause of action.
We hold that the plaintiffs have stated a claim for medical negligence which is recognized in this state. This brings us to the final issue, the question of the damages recoverable. Whether the action be regarded as one in tort or in contract, only those damages which are the direct, natural, and probable result of the wrongful act are recoverable. We have reviewed the damage claims of the parties, as set forth in thqir answers to interrogatories and in their depositions, and, hold that damages may be recovered in this action, upon proper proof, for only the following:
(1) The expense of the unsuccessful vasectomy operation.
(2) The physical pain and suffering the patient, Mr. Johnston, endured in connection with that surgery.
(3) The cost of prenatal care, delivery, and of the tubal ligation performed upon Mrs. Johnston.
(4) The physical pain and suffering sustained by Mrs. Johnston in connection with the pregnancy, childbirth, and tubal ligation, and during a reasonable recovery period thereafter.
(5) Loss of consortium at the time of vasectomy, during the later stages of the pregnancy, and during a reasonable recovery period thereafter.
Counsel stated during oral argument that there were no claims for any medical complications sustained by Mr. Johnston as a direct result of the unsuccessful vasectomy, and no claims on behalf of Mrs. Johnston for any medical complications sustained by her in connection with the childbirth or the tubal ligation. Also, neither of the parties sustained any demonstrable wage or income loss prior to the birth of the child. Thus, we need not include those as items for which damages may be recovered in this case.
Except as stated above or in other unusual circumstances, damages cease at the time of the birth of the child. We have declined to recognize a normal, healthy child as an item of damage, because claims for damages after childbirth are inextricably related to the child, such future damages are not recoverable. In the present case, claims for such items as lack of adequate time to care for all of the children, emotional suffering, loss of sleep, and worry about finances all relate to the future and are not recoverable.
The trial court, as we noted earlier in this opinion, entered summary judgment based upon plaintiffs’ failure to assert a claim upon which relief may be granted. The judgment, therefore, must be reversed. The trial court has not yet ruled upon the agency issue, and that may be determined upon remand.
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The opinion of the court was delivered by
Luckert, J.:
Andrew Ramey Ellmaker, a juvenile who was certified to stand trial as an adult, appeals his convictions of premeditated first-degree murder and aggravated battery. He also appeals his sentence of life imprisonment without parole for 50 years. He raises several issues that we have taken the liberty to rephrase to reflect the parties’ arguments and to reorder for ease of discussion: (1) Did the district court err by giving an instruction regarding the definition of criminal intent as it related to premeditated first-degree murder? (2) Did the district court err by giving an Allen-type instruction to the jury (see Allen v. United States, 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154 [1896])? (3) Where a juvenile stipulates to the evidence regarding a waiver of juvenile jurisdiction, can an appellate court under K.S.A. 38-1681 consider whether the district court erred in authorizing the prosecution of the defendant as an adult without first submitting to a jury the question of whether the facts supported the court’s certification decision? (4) Where a juvenile stipulates to the evidence regarding a waiver of juvenile jurisdiction, can an appellate court consider whether tire district court erred in certifying the defendant for prosecution as an adult without complying with K.S.A. 38-1636(c)(2), the statute in effect at the time of the offenses and certification? (5) Were the defendant’s due process rights violated because the criminal complaint did not specify the underlying aggravating factors supporting a hard 50 life sentence? (6) Is Kansas’ hard 50 sentencing scheme unconstitutional? and (7) Did cumulative errors deprive the defendant of a fair trial?
We reject most of Ellmaker’s arguments, finding merit only in his contention that the Allen-type instruction was erroneous. That error, however, was not reversible, and we therefore affirm Ell-maker’s convictions and his hard 50 life sentence.
Factual and Procedural Background
Ellmaker’s convictions arise from tire murder of his social worker, Teri Zenner, and the aggravated batteiy of his mother, Mary Susan Ellmalcer (Sue). When the crimes occurred in August 2004, Ellmalcer was 17 years old and a senior in high school. He had a long history of mental “dysfunction,” dating back to his early childhood. Ellmalcer had been diagnosed with having schizotypal personality, which is a personality trait containing some elements of schizophrenia. As part of his treatment regimen, Ellmaker was assigned a social worker through the Johnson County Mental Health Center, and Zenner had served in that role for about a year.
On the day of the crime, Zenner came to Ellmaker s home for an after-school visit. Initially, Ellmaker and Zenner were the only ones in the home. Consequently, most of what the jury learned about the events came from Ellmaker’s statements to police. These statements were made several hours after the crimes were committed and after Ellmaker waived his rights under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966). Recordings of the police interviews were played to the jury.
According to Ellmaker, when Zenner arrived she indicated the meeting would be short. She quickly completed some paper work for Ellmaker to sign and then prepared to leave. But Ellmaker did not want her to leave, and he asked her to go upstairs to his bedroom. Ellmaker told the detective he had a reason for not allowing Zenner to leave, but he did not want to say what it was. Eventually Ellmaker “convinced” Zenner to go to his bedroom.
Once there, Ellmaker pulled out his sharpest knife, which he described as a sharpened chef s knife. Zenner told him she was scared, needed air, and wanted to leave. She told Ellmaker that she would not report the incident, but he told the detective, “I knew she was going to go to the police about me holding her at knife point in my room so I did it.”
According to Ellmaker, he “did it” when his mother Sue came home earlier than he expected, approximately 30 minutes after Ellmaker and Zenner had gone into his bedroom. He explained that Zenner was crying loudly when he heard his mother come into the house. Sue testified, however, that she did not hear the crying when she first entered the house. But, after just a few minutes, she went back to her car briefly, reentered the house, and at that point heard Zenner crying. Sue yelled for her son to come downstairs. When nothing happened, Sue persisted, telling Ellmaker numerous times that she wanted both of them to come down. At one point, Sue threatened to call the police, and Ellmaker replied, “When?” Giving Ellmaker until the count of three to come downstairs, Sue began counting down, “Three, two, one.”
When Sue got to “one,” Zenner sprang for the door. As she did, Ellmaker stabbed her in the throat. Ellmaker told the detective he “just didn’t care.” Despite the wound, Zenner escaped; she came running out of the bedroom and down the stairs. Ellmaker followed and continued stabbing her. He explained that “one [stab] came” and “then all the others had to come.”
When Ellmaker and Zenner got to the bottom of the stairs, Sue placed herself between Zenner and Ellmaker, yelling for Ellmaker to stop. All three tumbled to the floor, and Sue rolled onto Zenner to protect her. Ellmaker stabbed Sue four times in the back, once in the chest, and once in the right arm; he also slashed her ear. Ellmaker stopped stabbing at them when the knife bent.
At that point, Sue ran next door to get help and call 911. Meanwhile, Ellmaker returned to his bedroom, turned on some music, and grabbed his chainsaw from the closet. He explained to the detective that he followed the instruction's printed on the chainsaw’s box that detailed seven steps for starting and operating the chainsaw. Ellmaker then used the chainsaw to almost sever Zenner’s left forearm and her neck. He also slashed her head, back, and right hip. At this point, the chain broke which, according to Ellmaker, caused him to be “pissed off’ because he had recently bought the chainsaw.
After using the chainsaw, Ellmaker tried to commit suicide by ingesting a variety of pills. He then left the house with two pellet guns and tried to leave .in Zenner’s vehicle. When he had trouble getting the car to start, he took gasoline from the garage, poured it on the vehicle, and set it on fire. Ellmaker ran into the street as police arrived. The police ordered him to drop his weapons, which he did. As Ellmaker was being handcuffed, he spontaneously stated, “I just killed my therapist with a chainsaw,” and “I cut her down the back, on the arm, [and] I cut her leg off. I don’t know if I cut her head off or not.”
Because Ellmaker had cut one of his fingers, officers sent him by ambulance to the emergency room at a local hospital where an emergency room physician stitched the finger. The physician testified that he asked Ellmaker how he injured his finger, and Ell-maker replied he was not exactly sure how it happened. Ellmaker reported that he had stabbed his social worker in the neck and then chased her down the hall, stabbing her. He also reported that they fell down the stairs, that he had stabbed his mother, and diat at some time during these events he cut his finger. Ellmaker told the physician that after the stabbings stopped, he turned and saw Zenner on the floor and “knew what he had to do.” He then “went to get his chainsaw.”
Still at the hospital, Ellmaker was interrogated by Sergeant Russell Stamer. After being Mirandized and signing the waiver, Ell-maker agreed to speak to Stamer. Because of the circumstances at the hospital, Stamer conducted two interviews over the course of approximately 2 hours. These are the recorded interviews that were played for the jury.
In addition, as part of the investigation, the police executed a search warrant and the coroner performed an autopsy. In executing the search warrant, the police found several knives, a hatchet, an ax, two machetes, and four small ropes in Ellmaker s bedroom. Some of these items were hidden from view, but others, including the ax, were clearly visible. The autopsy revealed Zenner suffered six stab wounds, several of which would have been fatal or potentially fatal. According to the coroner, the likely cause of death was a compound stab wound to the throat. One pathway was 4 inches deep and went through the pulmonaiy artery, the right chamber of the heart, and the aorta. After suffering this stabbing, Zenner had only seconds to live. In addition, the coroner documented stab wounds to both lungs that were potentially fatal and other nonfatal wounds to her hand and thigh. Most likely, Zenner was dead before Ellmaker used the chainsaw, which inflicted injuries that would otherwise have caused death, including near decapitation.
Ellmaker was charged in juvenile court with premeditated first-degree murder and aggravated battery. As will be discussed in more detail, based in part on a defense stipulation, the district court waived juvenile jurisdiction. At trial, after Ellmaker was certified for prosecution as an adult, defense counsel conceded that Ell-maker s killing of Zenner was intentional, but he argued that it was not premeditated. The jury convicted Ellmaker as charged. He now brings a timely appeal.
I. Jury Instruction on Criminal Intent
As his first issue on appeal, Ellmaker claims the district court erred in instructing the jury with Pattern Instructions for Kansas (PIK) Crim. 3d 54.01 (inference of intent), over defense counsel’s objection. PIK Crim. 3d 54.01 was used by the district court as the basis for Instruction 10, which states:
“Ordinarily, a person intends all of the usual consequences of his voluntary acts. This inference may be considered by you along witii all the other evidence in the case. You may accept or reject it in determining whether the State has met its burden to prove the required criminal intent of the defendant. This burden never shifts to the defendant.” (Emphasis added.)
Ellmalcer’s objection is two-pronged, as he contends the presumption contained within the instruction impermissibly lowered the State’s burden to prove the specific intent and premeditation elements of the premeditated first-degree murder count.
A. Standard of Review
The parties disagree on the standard of review to be applied to our analysis of this issue. The standard of review for criminal jury instructions is primarily defined by K.S.A. 22-3414(3), which states in part:
“No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to ivhich the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.” (Emphasis added.)
Thus, the standard of review depends on whether a parly states a specific objection to the giving of an instruction. Here, Ellmaker’s counsel objected to Instruction 10. Nevertheless, the State argues a clearly erroneous standard of review applies because Ellmaker stated a different objection at trial than the issue he raises on appeal. In other words, using the terminology of the statute, Ellmaker did not “distinctly” state “the grounds of the objection” that he advances on appeal.
The record substantiates the State’s argument. In fact, PIK Crim. 3d 54.01 or a similar instruction was proposed by both parties in pretrial filings. Nevertheless, at the instructions conference, defense counsel argued that giving Instruction 10 would be “inappropriate” and objected to the inclusion of the instruction based on the premise that the instruction constituted “burden shifting.” Despite the objection, the district court decided to give the instruction in light of this court’s repeated rejection of the burden-shifting argument and past approval of PIK Crim. 3d 54.01. See, e.g., State v. Martinez, 288 Kan. 443, 452, 204 P.3d 601 (2009); State v. Woods, 222 Kan. 179, 185, 86, 563 P.2d 1061 (1977).
On appeal, rather than make the burden-shifting argument asserted at trial, Ellmaker argues the instruction lowered and even negated the State’s burden. At oral argument, Ellmaker’s appellate counsel attempted to minimize the difference between the objections, arguing the effect of both arguments was essentially the same and the two objections were functionally equivalent.
We disagree. While the focus is on the State’s burden of proof, the concepts and legal principles that relate to the argument of whether a burden is shifted to a defendant are different than those that relate to defining and imposing the State’s burden of proof in a criminal case. Further, it is important to remember that the purpose of requiring an objection is to allow the district court to correct an error, if one occurred. E.g., State v. Crane, 260 Kan. 208, 218, 918 P.2d 1256 (1996). Here, the district court considered authorities related to the specific objection raised by Ellmaker during the instruction conference, but the district court had no opportunity to consider the argument now being made. Under similar circumstances where a trial objection to a jury instruction was different from the appellate issue, this court has applied the clearly erroneous standard of review. See, e.g., State v. Butler, 257 Kan. 1043, 1065, 897 P.2d 1007 (1995). For these reasons and based on these authorities, we conclude the clearly erroneous standard of review applies to this issue.
The clearly erroneous standard of review under K.S.A. 22-3414(3) is well known: “An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” Martinez, 288 Kan. 443, Syl. ¶ 9; see State v. Salts, 288 Kan. 263, 265-66, 200 P.3d 464 (2009); State v. Overstreet, 288 Kan. 1, 9-10, 200 P.3d 427 (2009). In reviewing juiy instructions for error, we examine the instructions as a whole, rather than isolate any one instruction, and determine if the instructions properly and fairly state the law as applied to the facts of the case. See State v. Dixon, 289 Kan. 46, 67, 209 P.3d 675 (2009); State v. Edgar, 281 Kan. 47, 54, 127 P.3d 1016 (2006).
B. Specific Intent
Applying this standard of review, we examine the first prong of Ellmaker’s argument, i.e., that Instruction 10 “eroded” the specific intent element by allowing the State to prove merely that he committed the voluntary act of stabbing Zenner’s throat. He argues that once the State proved he had stabbed Zenner, the juiy could conclude he intended to kill her because death is a natural consequence of stabbing someone in the throat. The result, he asserts, is that the State was relieved of its burden of proving intent beyond a reasonable doubt. We do not reach the substance of this issue, however, because Ellmaker’s own arguments to the jury and his requests for jury instructions undercut his argument.
The most significant undercutting of Ellmaker’s instruction argument results from the defense’s trial concession that Ellmaker intended to kill Zenner. For instance, during closing arguments, defense counsel told the jury that Ellmaker “struck down with tire knife intentionally and purposefully with intent to kill.” He also argued that Ellmaker committed an intentional act, which was an “instantaneous reaction.” In addition, defense counsel argued that the jury should convict Ellmaker of the lesser offense of intentional second-degree murder rather than first-degree murder because of the lack of premeditation. Hence, premeditation, or the lack thereof, was the focus of Ellmaker’s theory of defense, and Ell-maker’s intent to kill was not a disputed issue as evidenced by his own arguments.
Ellmaker’s argument is also undercut because, if there was confusion regarding intent, it was at least partially created by Ell-maker’s request to give PIK Crim. 3d 54.01-A, the instruction on general intent. This instruction was requested by Ellmaker during the instruction conference after the district court mentioned the instruction but immediately questioned whether giving it would be appropriate. In response, the State indicated it did not “have any problem with it,” and defense counsel responded, “I request it.” On appeal, Ellmaker defends the use of the instruction because it provides a definition of intent that is consistent with K.S.A. 21-3201, which states, in part: “(b) Intentional conduct is conduct that is purposeful and willful and not accidental. As used in this code, the terms ‘knowing/ ‘willful/ ‘purposeful/ and ‘on purpose’ are included within the term ‘intentional.’ ”
PIK Crim. 3d 54.01-A does not end with this definition, however. It also states: “Intent or lack of intent is to be determined or inferred from all the evidence in the case.” Thus, though a more general statement than PIK Crim. 3d 54.01, PIK Crim. 3d 54.01-A reiterates the direction in PIK Crim. 3d 54.01 that the State’s burden can be met through inferences drawn from a defendant’s actions. What is troubling about the instruction is what it does not state; specifically, it does not indicate the specific intent that must be established to prove the elements of the charged crimes or various lesser included offenses. See State v. Bruce, 255 Kan. 388, 394, 874 P.2d 1165 (1994) (“ ‘The distinction between a general intent crime and a crime of specific intent is whether, in addition to the intent required by K.S.A. 21-3201, the statute defining the crime in question identifies or requires a further particular intent which must accompany the prohibited acts.’ ”).
Because PIK Crim. 3d 54.01-A blurs general and specific intent, there is a long line of precedent in which it has been repeatedly held that PIK Crim. 3d 54.01-A should not be used as a separate instruction in a case where specific intent must be proven. E.g., State v. Yardley, 267 Kan. 37, 42-43, 978 P.2d 886 (1999); State v. Mitchell, 262 Kan. 434, 442-43, 939 P.2d 879 (1997); State v. Isley, 262 Kan. 281, 293, 936 P.2d 275 (1997); State v. Plunkett, 261 Kan. 1024, 1032, 934 P.2d 113 (1997). The same point is emphasized in the Notes on Use for PIK Crim. 3d 54.01-A, which state:
“This instruction [PIK Crim. 3d 54.01-A] is not recommended for general use. The PIK instruction defining the crime should cover either specific or general criminal intent as an element of the crime. This instruction should be used only where the crime requires only a general criminal intent and the state of mind of the defendant is a substantial issue in the case.” (Emphasis added.)
First-degree murder is a specific intent crime, and the instruction should not have been given. See State v. Trussell, 289 Kan. 499, 503, 213 P.3d 1052 (2009) (State required to prove specific intent to kill and premeditation to convict of first-degree murder).
Despite this guidance and precedent, Ellmaker requested PIK Crim; 3d 54.01-A. A party cannot allege error arising from an instruction that the party requested. See K.S.A. 22-3414(3). It follows that a party who injects error by requesting an erroneous instruction cannot complain that a different instruction causes the same error. Here we have a situation where the erroneous, requested instruction (PIK Crim. 3d 54.01-A) blurs the requirement of specific intent and potentially confused the jury as to what intent must be established. The complained-of instruction (PIK Crim. 3d 54.01) is claimed to have done the same thing. Under those circumstances, Ellmaker cannot complain of the alleged error.
C. Premeditation
In the second prong of this issue, Ellmaker argues Instruction 10 could have led the jury to believe that only the voluntary act of stabbing had to be thought over beforehand, not the killing. We disagree because the instructions clearly advised that the intent to kill and premeditation were separate elements and that the State was required to prove both. To explain, several instructions need to be considered.
First, Instruction 15 stated the elements of premeditated first-degree murder. This instruction, which was modeled after PIK Crim. 3d 56.01, stated:
“The defendant is charged in Count I of the Complaint with the crime of murder in the first degree. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That the defendant intentionally killed Teri Zenner;
2. That such killing was done with premeditation;
3. That this act occurred on or about the 17th day of August, 2004, in Johnson County, Kansas.”
As previously noted, Ellmaker’s counsel conceded element 1— that Ellmaker intentionally killed Zenner. Element 2 stated the premeditation requirement and clearly required that the killing be premeditated. Thus, contrary to Ellmaker s argument, the instruction left no room for the jury to conclude that only the stabbing had to be premeditated.
Another instruction — Instruction 16 — provided the jury the definition of “premeditation.” Instruction 16, which was identical to PIK Crim. 3d 56.04, reiterated that the killing had to be premeditated and stated:
“ ‘Premeditation’ means to have thought the matter over beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act oí taking another’s life.” (Emphasis added.)
In addition, Instruction 7, which followed PIK Crim. 3d 52.02, clearly informed the jury of the State’s burden to prove every element. Furthermore, Instruction 10 did not alter the other instructions’ guidance on the State’s burden of proof. As explained in the PIK committee’s Notes on Use for PIK Crim. 3d 54.01 (on which Instruction 10 is based), the inference of intent instruction “is a rule of evidence and does not deal with the required element of criminal intent necessary for conviction in those cases where criminal intent is a necessary element of the offense”; see also PIK Crim. 3d 54.01-A, Notes on Use (PIK Crim. 3d 54.01-A “must not be confused with” PIK Crim. 3d 54.01 “which is a rule of evidence and does not purport to charge the jury to find criminal intent necessary for conviction.”); State v. Lassley, 218 Kan. 752, 756, 545 P.2d 379 (1976) (stating that the inference of intent instruction pertains to the presumption of intent which is merely a rule of evidence). Moreover, the “instruction is designed to make it crystal clear that the presumption’ is only a permissive inference, leaving the trier of fact free to consider or reject it.” PIK Crim. 3d 54.01, Comment. In fact, Instruction 10 emphasized: “You may accept or reject [the inference] in determining whether the State has met its burden to prove the required criminal intent of the defendant.”
Based on this reasoning, this court has consistently approved PIK Crim. 3d 54.01. E.g., Martinez, 288 Kan. at 452; State v. Stone, 253 Kan. 105, Syl. ¶ 1, 853 P.2d 662 (1993); State v. Harkness, 252 Kan. 510, 525-27, 847 P.2d 1191(1993); State v. McDaniel & Owens, 228 Kan. 172, 179-80, 612 P.2d 1231 (1980); State v. Lassley, 218 Kan. 758, 762, 545 P.2d 383 (1976). Although these cases primarily dealt with an issue of shifting burdens, the decisions also often contained statements relating to Ellmaker s argument.
For example, in Lassley, the court contrasted presumptions with inferences and explained that an instruction allowing the jury to infer intent
“is consistent with the requirement that the prosecution prove the criminal intent. Intent is difficult, if not impossible, to show by definite and substantive proof. Thus, it is agreed that criminal intent may be shown by proof of the acts and conduct of the accused, and inferences reasonably drawn therefrom. We fail to see any conflict with the statutory burden placed on the state.” Lassley, 218 Kan. at 762-63.
Subsequently, in Harkness, this court explained that “ ‘an instruction containing a permissive inference does not reheve the State of its burden because it still requires the State to convince the jury that an element, such as intent, should be inferred based on the facts proved.’ [Citation omitted.]” Harkness, 252 Kan. at 526; see Stone, 253 Kan. at 106-08. Most recently, in a premeditated first-degree murder case, this court rejected the defendant’s argument that PIK Crim. 3d 54.01 “allows the jury to disregard the State’s burden of proving intent.” Martinez, 288 Kan. at 452.
This repeated rejection of Ellmaker’s argument reaffirms the propriety of the instructions in this case. Considering all the instructions together, we conclude Instruction 10 did not mislead the jury into believing that the State did not have to prove that Ellmaker premeditated the killing and could meet its burden by proving that Ellmaker premeditated the stabbing.
II. Allen-type Instruction
Next, Ellmaker challenges the language stating that “[a]nother trial would be a burden on both sides,” found in Instruction 14, an Allen-type instruction, which mirrored PIK Crim. 3d 68.12. See Allen v. United States, 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154 (1896). He contends on appeal that Instruction 14 impermissibly pressured jurors to reach a unanimous verdict. In addition, he argues that this language is misleading and inaccurate because an other trial is not a burden to either party. Ellmaker contends, as well, that the disputed language prejudiced him because it appealed to the jurors’ financial interests as taxpayers. We agree and conclude the district court erred in giving the deadlocked jury instruction. Nevertheless, we also conclude the district court’s decision was not reversible error.
Ellmaker did not object to the instruction at trial; therefore, as with the previous issue, the clearly erroneous standard of review applies. The language which Ellmaker argues is clearly erroneous is emphasized in the following quotation of Instruction 14:
“Like all cases, this one is important. If you fail to reach a decision on some or all of the charges, that charge or charges are left undecided for the time being. It is then up to the State to decide whether to resubmit die undecided charges to a different jury at a later time. Another trial would be a burden on both sides.
“This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of the other jurors or because of the importance of arriving at a decision.
“This does mean that you should give respectful consideration to each other’s views and talk over any differences of opinion in a spirit of fairness and candor. If at all possible, you should resolve the differences and come to a common conclusion.
“You may be as leisurely in your deliberations as the occasion may require and take all the time you feel necessary.” (Emphasis added.)
The giving of the deadlocked jury instruction before the jury retires for deliberations has previously been approved, see State v. Makthepharak, 276 Kan. 563, 569, 78 P.3d 412 (2003), and reaffirmed in State v. Anthony, 282 Kan. 201, 216, 145 P.3d 1 (2006). But this court recently announced in Salts, 288 Kan. 263, Syl. ¶ 2, that it is error to include the last sentence in the first paragraph of the instruction: “Another trial would be a burden on both sides.” There, for the first time on appeal, Salts challenged the deadlocked jury instruction, arguing the language was misleading and inaccurate because another trial does not burden either party; it is the State’s obligation and a defendant’s right. Salts further argued the language was legally incorrect because, as noted in a previous jury instruction, the jury should not consider what happens after trial. Finally, Salts argued the disputed language prejudiced him because it appealed to the jurors’ financial interests as taxpayers.
In holding that the challenged language was misleading and inaccurate, the Salts court stated:
“Contrary to this language, a second trial may be burdensome to some but not all on either side of a criminal case. Moreover, tire language is confusing. It sends conflicting signals when read alongside . . . [an] instruction that tells jurors not to concern themselves with what happens after they arrive at a verdict.
“We therefore hold that including the language ‘[a]nother trial would be a burden on bodr sides’ in PIK Crim. 3d 68.12 is error.” Salts, 288 Kan. at 266.
Nevertheless, convinced there was no real possibility of the jury rendering a different verdict if the error had not occurred, we concluded there was no reversible error, even if the instruction included an erroneous statement. Salts, 288 Kan. at 267. The deadlocked jury instruction in Salts, as in the present case, was given before the jury deliberated and was included with all the other jury instructions.
Similar to Salts, we are firmly convinced that there is no real possibility that the jury would have rendered different verdicts if the error had not occurred. The evidence against Ellmaker was substantial. There is no question that he was guilty of serious crimes against both Zenner and Sue. As to the count of premeditated first-degree murder, the defense conceded the intent to kill. Further, there was considerable evidence of premeditation, including Ellmaker’s gathering of weapons, his apparent plan to hold Zenner against her will, and his statements that “I knew she was going to go to the police about me holding her at knife point in my room so I did it.” Then, without knowing Zenner was probably already dead, when she fell to the floor, he “knew what [he] had to do,” meaning he had to get his chainsaw and use it on Zenner. This process included him going to his bedroom, getting the chainsaw, following the seven steps to start the chainsaw, and then using it. Regarding the count of aggravated battery, the evidence was undisputed that Ellmaker stabbed his mother multiple times resulting in injuries that required medical treatment. In light of this evidence, we do not hesitate in finding that the district court’s giving the Allen-type instruction does not require reversal of either conviction.
III. Prosecution as Adult Without Jury Determination
Next, Ellmaker argues that when the juvenile judge made factual findings supporting its decision to authorize the prosecution of him as an adult, it increased his potential punishment in violation of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
As part of its response to these arguments, the State raises the preliminary question of whether we have jurisdiction to consider this Apprendi issue because Ellmaker consented to the order authorizing his prosecution as án adult. Appellate courts have unlimited review over questions involving the existence of jurisdiction. See State v. Fischer, 288 Kan. 470, 472, 203 P.3d 1269 (2009) (stating that constitutional challenges present a question of law subject to unlimited review); State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 (2007) (stating that jurisdiction is a question of law subject to unlimited review).
A. Additional Facts
Initially, charges were brought against Ellmaker as a juvenile under the Kansas Juvenile Justice Code, K.S.A. 38-1601 et seq., alleging he committed two person felony offenses — premeditated first-degree murder, an off-grid crime, and aggravated battery, a nondrug severity level 4 crime. See K.S.A. 21-3401(a); K.S.A. 21-3414. Based in part on the severity of these crimes, the State filed a motion requesting a “waiver to adult status” under K.S.A. 38-1636 in order to prosecute Ellmaker as an adult under the Kansas Criminal Code, K.S.A. 21-3101 etseq. At the hearing on the matter, defense counsel stated the following on the record:
“We have had [Ellmaker] examined by three doctors, actually four [sic] — two Ph.D. psychologists, and a psychiatrist. They all unanimously concur that he is severely ill, mentally ill, and needs long-term structured treatment such that jurisdiction of this court would be exceeded by his needs.
“And I have gone over the factors that the court is to consider under K.S.A. 38-1636 with [Ellmaker] in quite some detail, and he has concluded along with us that at this point in time, he will stipulate to the waiver and stipulate that the court should waive its original jurisdiction and that die proceedings continue in die adult court.”
Before accepting Ellmaker s stipulation, the judge presiding over the juvenile proceeding, asked Ellmaker if he had enough time to think about this decision and to discuss it with defense counsel. Ellmaker said, “Yes, I have.” Ellmaker indicated that he was taking prescribed medications, but they did not interfere with his ability to think clearly at the hearing. Ellmaker denied having been threatened to make the stipulation or having been given any promises. When the judge asked Ellmaker if it was his desire to “waive your right to a hearing and be prosecuted as an adult,” he answered in the affirmative. The judge also considered the eight factors in K.S.A. 38-1636(e) that a court must consider in determining whether prosecution as an adult should be authorized — i.e., seriousness of the offense; whether the offense was committed in an aggressive, violent, premeditated, or willful manner; whether the offense was against a person or property; the number of alleged offenses unadjudicated and pending; the juvenile’s previous history; the sophistication or maturity of the juvenile; the availability of facilities or programs likely to provide rehabilitation; and whether the interests of the juvenile or community would be better served by adult prosecution or extended juvenile jurisdiction.
B. Jurisdiction
“It is well established that appellate jurisdiction is defined by statute; the right to appeal is neither a vested nor constitutional right. . . . [Ajppellate courts do not have discretionary power to entertain appeals from all district court orders. [Citations omitted.]” Williams v. Lawton, 288 Kan. 768, 778, 207 P.3d 1027 (2009). Applying this rule in this case, the State argues that the relevant statutes do not grant appellate jurisdiction over a decision to certify a juvenile as an adult if the juvenile consents to adult jurisdiction. To support the argument, the State relies on K.S.A. 38-1681(a)(l) (repealed effective January 1,2007; L. 2006, ch. 169, sec. 140), which was applicable at the time of the hearing in this case and stated in part: “Unless the respondent [juvenile offender] has consented to the order, an appeal may be taken by a respondent from an order authorizing prosecution as an adult.” See K.S.A. 2008 Supp. 38-2380(a)(l) (current version containing nearly identical language); K.S.A. 22-3208(4) (stating that “consent to trial upon a complaint . . . shall constitute a waiver of defenses and objections based upon the institution of the prosecution”).
A similar argument was considered in State v. Smith, 268 Kan. 222, 993 P.2d 1213 (1999). In Smith, one of the defendants, a juvenile, had requested to be tried as an adult, but he argued on appeal that the court improperly waived jurisdiction by failing to consider the statutory factors enumerated in K.S.A. 38-1636(e). In response, the State argued that the juvenile judge’s order authorizing prosecution as an adult was not appealable because the juvenile defendant had consented to the order. Under the facts of that case, this court disagreed because the statute provides that “the judge, in making the decision to waive jurisdiction, must take into account the juvenile’s stipulation and evidence concerning the eight factors in K.S.A. 38-1636(e).” Smith, 268 Kan. at 246. The judge in the Smith case had failed to consider the eight factors.
Regarding the right to appeal, the Smith court stated: “While K.S.A. 38-1681 precludes an appeal of an order waiving juvenile status when the respondent [juvenile] has consented to the waiver, it does not preclude an appeal if the judge failed to follow the statutory requirements for the waiver.” (Emphasis added.) Smith, 268 Kan. at 244; cf. In re S.M.D., 26 Kan. App. 2d 165, 169-70, 980 P.2d 1028, rev. denied 267 Kan. 889 (1999) (determining that K.S.A. 38-1636 does not require courts to consider statutory factors when a respondent stipulates that he or she cannot rebut the statutory presumption).
In this case, Ellmaker clearly consented to the order by conceding on the record that he needs longer supervision than he could receive in the juvenile justice system, a concession which was a stipulation to the State’s evidence. But, unlike the situation in Smith, Ellmaker does not argue that the juvenile judge failed to consider the eight factors found in K.S.A. 38-1636(e). Moreover, the record shows that the judge did consider those factors in ordering Ellmaker’s adult certification. Hence, under the reasoning in Smith, Ellmaker was properly certified for prosecution as an adult and we do not have jurisdiction to consider Ellmaker’s argument. Furthermore, the allegation of an Apprendi-like error does not require a different result. See United States v. Booker, 543 U.S. 220, 244, 160 L. Ed. 2d 621, 125 S. Ct. 738 (2005) (recognizing exception to Apprendi rule when defendant admits a fact or pleads guilty to an indictment that states the fact).
IV. K.S.A. 38-1636(c)(2)
Nevertheless, in a related argument, Ellmaker contends that the juvenile judge’s failure to comply with another subsection of the same statute- — the notification requirements of K.S.A. 38-1636(c)(2) (repealed and Revised Kansas Juvenile Justice Code enacted effective January 1, 2007; L. 2006, ch. 169, secs. 1, 47, and 140; see K.S.A. 2008 Supp. 38-2347[c][2]) — mandates that we vacate his sentences and remand his case for a resentencing under the Juvenile Justice Code. This brings into question whether the failure to advise Ell-maker of each of the rights enumerated in K.S.A. 38-1636(c)(2) creates a situation similar to that in Smith, 268 Kan. at 244-46, such that an appeal may be taken despite the juvenile’s waiver at the hearing.
The requirements of subsection (c)(2) of K.S.A. 38-1636 are quite different from subsection (e), the provision at issue in Smith. K.S.A. 38-1636(c)(2) requires the judge to inform the juvenile of the following six items at the hearing on a motion to authorize adult prosecution:
“(A) The nature of the charges in the complaint;
“(B) the right of the respondent [juvenile] to be presumed innocent of each charge;
“(C) the right to trial without unnecessary delay and to confront and cross-examine witnesses appearing in support of the allegations of the complaint;
“(D) tire right to subpoena witnesses;
“(E) the right of die respondent [juvenile] to testify or to decline to testify; and
“(F) the sentencing alternatives the court may select as the result of the juvenile being prosecuted under an extended jurisdiction juvenile prosecution.”
The record reflects that the judge advised Ellmaker of some of these factors but did not explain the potential penalties if Ell-maker’s offenses were treated as juvenile offenses.
This failure is different from the defect in Smith. A reading of the rights listed in K.S.A. 38-1636(c)(2) does not impact the judge’s decision to certify the juvenile as an adult. In Smith, it was emphasized that a judge must consider the subsection (e) factors and make the required findings regardless of the juvenile’s stipulation because the juvenile is not stipulating to adult jurisdiction but is stipulating “to allegations made against him in a motion to waive juvenile jurisdiction.” Smith, 268 Kan. at 246. The distinction derives from the rale that subject matter jurisdiction cannot be conferred by waiver, estoppel, or consent. See State v. Randolph, 19 Kan. App. 2d 730, 737-39, 876 P.2d 177, rev. denied 255 Kan. 1006 (1994) (citing State v. Mayfield, 241 Kan. 555, 558, 561, 738 P.2d 861 [1987]). Consequently, a juvenile does not consent to jurisdiction in a literal sense. Rather, the stipulation merely means there will be no evidence presented to rebut the presumption created by K.S.A. 38-1636(a)(2) or that there is a stipulation to the evidence the State proffers. See State v. Luna, 271 Kan. 573, Syl. ¶ 1, 24 P.3d 125 (2001) (“A juvenile may stipulate to the State’s allegations in a motion to certify the juvenile for prosecution as an adult, and, provided the allegations and/or the factual basis reviewed at the motion hearing constitute a ‘rough approximation’ of the eight mandatory considerations listed in K.S.A. 38-1636[e], the certification will not be overturned on appeal.”). Such a stipulation is not impacted by the factors listed in K.S.A. 38-1636(c)(2).
The judge presiding over the juvenile proceeding in this case recognized the distinction, as reflected in the findings recorded in the journal entiy which state that Ellmaker stipulated “to the motion and the evidence proffered” by the State. Further, the judge found Ellmaker’s “need for extended structure and treatment” meant that “he cannot be adequately treated within the limitations of the juvenile code.” This finding reflected the substance of Ell-maker’s stipulation. Nevertheless, the judge made findings regarding other factors, citing the gravity and seriousness of the offenses and Ellmaker’s age. Only then did the judge conclude “there is sufficient evidence to order [Ellmaker] to be prosecuted as an adult.”
Hence, this case is distinguishable from Smith and is more like the situation in State v. Williams, 277 Kan. 338, 85 P.3d 697 (2004), which addresses the merits of Ellmaker s argument and, in doing so, indirectly discusses whether this court has jurisdiction to consider those arguments. In Williams, the defendant argued that the juvenile judge’s failure to inform him of the items listed in K.S.A. 38-1636(c)(2) deprived the criminal court of jurisdiction to try him as an adult. Rejecting the defendant’s argument, this court stated:
“Although the statute provides that the court shall inform the respondent [juvenile] of the items listed in subsection (c)(2), if the respondent is not present for the hearing, as permitted by subsection (d), the court cannot inform the respondent at the hearing of the items listed in subsection(c)(2). Hence, contrary to the defendant’s contention, the fact the court did not inform the respondent of the items in subsection(c)(2) could not logically be a basis for depriving the district court of jurisdiction in the criminal prosecution.” Williams, 277 Kan. at 347.
Explaining that there is no logical basis for depriving the criminal court of jurisdiction when the juvenile judge fails to advise the juvenile defendant of the items under K.S.A. 38-1636(c)(2), the Williams court further stated:
“[T]here is no statutory or case law basis for divesting the district court of jurisdiction if defendant was not advised of the items specified in K.S.A. 38-1636(c)(2). Moreover, because [juvenile] respondents need not be present for a 38-1636 hearing, there is no logical basis for divesting the district court of jurisdiction if defendant was not advised at the hearing of the subsection(c)(2) items. Some sanction may be appropriate, but it would not include divestiture of district court jurisdiction.” (Emphasis added.) Williams, 277 Kan. at 348.
See State v. Muhammad, 237 Kan. 850, 856, 703 P.2d 835 (1985) (essentials of due process were met even though the juvenile’s failure to appear at K.S.A. 38-1636 hearing was involuntary). This court affirmed Williams’ convictions and sentences. See Williams, 277 Kan. at 348-51, 358.
For the same reasons, where there is no evidence presented but rather a stipulation to the evidence that formed the basis for the juvenile judge’s findings regarding the K.S.A. 38-1636(e) factors, •there is no basis to apply the Smith rule. Rather, under K.S.A. 38-1681, if a juvenile consents to the order authorizing prosecution as an adult, an appellate court does not have jurisdiction to consider the issues related to the waiver proceeding or to the judicial determination to waive juvenile jurisdiction even if a district judge fails to inform a juvenile of the items Usted in K.S.A. 38-1636(c)(2). Therefore, Ellmaker was properly certified for and prosecuted as an adult, and we affirm his convictions.
V. Aggravating Factors Supporting Hard 50 Sentence
Next, Ellmaker complains for the first time on appeal that his due process rights were violated because, when imposing the hard 50 life sentence, the district court relied on aggravating factors that were not charged in the criminal complaint. The complaint alleged premeditated first-degree murder, an off-grid offense. Nevertheless, Ellmaker contends that because the aggravating factors were not included in the complaint, he was denied notice of the “specific crime subcategory in the crime seriousness scale” under K.S.A. 22-3201(c). At oral argument, Ellmaker emphasized he is not making a constitutional due process argument but relies on a statutory right to notice arising from K.S.A. 22-3201(c).
A. Jurisdiction
Again, the State challenges whether this issue can be raised for the first time on appeal, citing to the general rule that issues not raised before the district court may not be raised on appeal. See State v. Valladarez, 288 Kan. 671, 675, 206 P.3d 879 (2009). Ell-maker asserts that this issue satisfies two of the exceptions to the general rule — (1) the issue involves a question of law based on admitted facts and is determinative of the case and (2) consideration of the issue is necessary to serve the ends of justice or to prevent a denial of due process rights. See State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008). Generally, matters of statutory interpretation are questions of law. See State v. Ortega-Cadelan, 287 Kan. 157, 164, 194 P.3d 1195 (2008). Further, the issue is determinative of Ellmaker s hard 50 life sentence. Consequently, we determine the first exception is satisfied and the issue may be raised for the first time on appeal.
B. Standard of Review
Resolution of the issue depends on our interpretation of K.S.A. 22-3201. Our rules of statutory interpretation are well known. As we recently stated:
“When a court is called upon to interpret a statute, the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language it enacted. [Citation omitted.] For this reason, when the language of a statute is plain and unambiguous, courts need not resort to statutory construction. [Citation omitted.] If a statute is subject to more than one interpretation, however, a court attempting to discern legislative intent may employ rules of statutory construction and look to the historical background of the enactment, the circumstances attending its passage, the purposes to be accomplished, and the effects the statute may have under the various constructions suggested. [Citations omitted.]” State v. Phillips, 289 Kan. 28, 32, 210 P.3d 93 (2009).
C. Analysis
K.S.A. 22-3201(c) requires that a complaint, information, or indictment “allege facts sufficient to constitute a crime or specific crime subcategory in the crime seriousness scale.” Ellmaker contends the complaint in this case failed to meet this requirement because it did not allege the aggravating facts that were used as a basis to impose his hard 50 life sentence. Ellmaker argues that because aggravating facts caused the parole eligibility on his life sentence to increase from 25 years to 50 years, this constituted an increase on the “crime seriousness scale” which should have been included in the criminal complaint.
In response, the State argues that the language in K.S.A. 22-3201(c) was intended to apply to crimes characterized by varying severity levels — such as aggravated battery, which can be a severity level 4, 5, 7, or 8 person felony- — depending on the manner in which the crime was committed. See K.S.A. 21-3414(b). Likewise, depending on the facts, theft can be a severity level 5, 7, or 9 nonperson felony or a class A nonperson misdemeanor under K.S.A. 21-3701(b); see also, e.g., K.S.A. 21-3413(b) (classifying battery against a law enforcement officer as a class A misdemeanor, severity level 5 person felony, or severity level 7 person felony). This type of categorization is not applicable to premeditated first-degree murder, an off-grid person felony, for which a sentence of life imprisonment is imposed.
The State’s arguments are valid. Our review of the Kansas statutes reveals that K.S.A. 22-3201(c) is the only statute using the term “crime seriousness scale.” The term has not been defined by the legislature or an appellate court. Nevertheless, in several cases, without discussion of the term’s meaning, this court has treated the phrase as the equivalent of a crime severity level. For example, in State v. Masterson, 261 Kan. 158, 164, 929 P.2d 127 (1996), after quoting the statute, this court stated: “Masterson should have the right to know before trial the severity level of the crime being charged.” (Emphasis added.) Similarly, in State v. Moody, 282 Kan. 181, 197, 144 P.3d 612 (2006), the court applied K.S.A. 22-3201(c) and concluded that a “defendant is entitled under due process to notice in the information or complaint of the severity level of the ... offense being charged.” (Emphasis added.) These cases support the State’s position.
Further, this court has held that imposition of a hard 50 sentence of life imprisonment without parole for 50 years, based on a fact not found by the district court as factfinder in a bench trial or by a jury in a jury trial, does not increase a defendant’s maximum sentence of imprisonment for life, because the hard 50 life sentence only impacts the lower end of the sentence; thus, there is no violation of the defendant’s due process rights or right to trial by jury. State v. Boldridge, 274 Kan. 795, Syl. ¶ 11, 57 P.3d 8 (2002), cert. denied 538 U.S. 950 (2003); see State v. Conley, 270 Kan. 18, Syl. ¶ 3, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001). In other words, the hard 50 sentencing procedure is not the equivalent of exposing a defendant to an increased maximum penalty. State v. Warledo, 286 Kan. 927, 955, 190 P.3d 937 (2008) (stating hard 50 life sentencing scheme “does not expose a defendant to a higher maximum sentence than provided by statute”); see State v. Hurt, 278 Kan. 676, 688, 101 P.3d 1249 (2004). Simply put, the crime severity — i.e., the crime seriousness scale — does not increase.
Consequently, we conclude the requirement in K.S.A. 22-3201(c) that a complaint, information, or indictment allege facts sufficient to constitute a crime or specific crime subcategoiy in the crime seriousness scale (the crime severity) does not require the State to allege the aggravating factors that are used as a basis to impose a hard 50 life sentence under K.S.A. 21-4635.
VI. Constitutionality of Hard 50 Sentencing Scheme
Next, in a related argument, Ellmaker contends for the first time on appeal that because a jury does not determine the facts that increase the penalty beyond a reasonable doubt, Kansas’ hard 50 sentencing scheme under K.S.A. 21-4635 is unconstitutional under Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2005); Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); and Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999).
This court has previously rejected the same challenge in numerous cases. See, e.g., State v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009); State v. Conley, 287 Kan. 696, 700-01, 197 P.3d 837 (2008); Warledo, 286 Kan. at 954; State v. Reid, 286 Kan. 494, Syl. ¶ 23, 186 P.3d 713 (2008); Williams, 277 Kan. at 357. Ellmaker fails to present any grounds for reconsidering our prior holdings. His argument fails, and we affirm Ellmaker’s hard 50 life sentence.
VII. Cumulative Error
Finally, Ellmaker argues that cumulative error requires reversal of his convictions and remand for a new criminal trial or juvenile adjudication. He contends that even if the errors alleged on appeal do not individually require this court to reverse his convictions, the cumulative impact of the alleged errors denied him a fair trial.
This court has applied the following test to a claim of cumulative trial errors:
“ ‘Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied [the defendant] a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.’ [Citations omitted.]” State v. Brown, 285 Kan. 261, 305-06, 173 P.3d 612 (2007).
The district court’s decision to give a deadlocked jury instruction is the only trial error, albeit not reversible error, we have found. “[T]he presence of one trial error is insufficient to accumulate.” State v. Houston, 289 Kan. 252, Syl. ¶ 14, 213 P.3d 728 (2009). Because multiple errors have not been found, the cumulative error doctrine is not applicable.
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The opinion of the court was delivered by
Parker, C. J.:
This was an action to recover damages for an alleged breach of a written lease of real estate, a business property, in Wichita. The appeal is from an order overruling a demurrer to the second amended petition as amended by supplemental allegations, which pleading will be hereafter referred to as the petition.
Omitting formal averments, the prayer, allegations of damages claimed to have been sustained, and divers allegations of no consequence to the issues, pertinent portions of the pleading in question read:
“That on or about the 9th day of December, 1958, plaintiff entered into a written lease with the said defendant, by the terms of which plaintiff leased from the defendant premises ... for the term beginning January 1, 1959, and expiring December 31, 1960, ... in monthly installments of $175.00. A copy of said lease is hereto attached marked Exhibit ‘A’ and made a part hereof.
“That plaintiff did, pursuant to the terms of said lease, go into tenancy of the premises . . . on or about the 1st day of January, 1959. That on or about the 17th day of January, 1959, the premises . . . were damaged so as to become untenantable. That plaintiff did not receive any written notice from tlie defendant regarding the restoration of the premises, however, at various times and on various occasions the defendant made oral representations to the plaintiff that the premises would be restored for the plaintiff’s .further tenancy.
“That plaintiff has performed all of the terms and conditions which the lease required of him and is still ready, ... to continue to so perform, but the defendant replied to plaintiff’s request with an oral demand for an increase of $200.00 per month, otherwise, defendant refused to allow the plaintiff to continue under the lease. This oral demand was made . . . sometime during the . . . early part of October, 1959, . . .
“That thereafter the defendant further breached his contract . . . treating said lease with the plaintiff as terminated and has entered into a new lease with one Lawrence Martin, thereby depriving the plaintiff of the balance of the term under his lease.”
Salient portions of the lease which, as previously indicated, was attached to and made a part of the petition read:
. . In the event the premises be destroyed or damaged by fire or other providential means so as to become untenantable, and if the lessor shall elect to rebuild■ or repair and shall give written notice of such election to the lessee within ten days after the time of such damage or destruction, then this lease shall remain in full force and effect and the lessor shall have the right to restore tire premises, and during the interval of such restoration and while the premises are untenantable, no rent shall be collectible from the lessee; but if the lessor does not so elect to restore the premises then this lease shall cease and become void and the obligations of the lessee to pay rent for the premises shall terminate as of tire time of such destruction or damage making the premises untenantable.
“This lease incorporates and includes all representations and agreements between the parties concerning the subject matter hereof and may not be supplemented nor modified except by writing signed by the parties hereto." (Emphasis supplied.)
Facets of the single appellate issue involved, i. e., whether the trial court erred in overruling the demurrer, will be clarified at the outset by establishing the theory on which plaintiff bases his claim the petition states facts sufficient to constitute a cause of action. Quoting from his own brief that theory is stated thus:
“Appellee’s cause of action is based, and it is so alleged in the amended petition, on a written lease entered into by the parties, which lease, despite the partial destruction of the premises, remained in full force and effect as a result of a valid modifying agreement between the parties; that appellant later repudiated and breached the lease agreement by leasing the premises to another party before appellee’s term was completed; the appellee was thereby damaged as alleged in the amended petition.”
Resort to the petition, which we again emphasize includes the lease contract, makes it clear there is a clear cut variance between the terms of the lease relied on and the allegations of the pleading. In such a situation the established rule of this jurisdiction, although sometimes differently stated, is that when an exhibit is the foundation of a petition the recitals in the exhibit control and govern the other allegations of the pleading of which it has been made a part.
For divers statements of the above mentioned rule see Zane v. International Hod, Carriers B. & C. L. Union, 155 Kan. 87, 122 P. 2d 715, where it is held:
“Where one asserts a cause of action upon a written instrument or document attached to and made a part of his petition, and not alleged to be incorrect, allegations of the petition at variance with tire provisions of the instrument or document, or not justified by it, cannot be considered by the court.” (Syl. f 1.)
See Degenhardt, Administrator, v. Degenhardt, 183 Kan. 260, 326 P. 2d 288, which holds:
“Where one asserts a cause of action upon a written instrument or document attached to and made a part of his petition, which exhibit is alleged to be correct, allegations of the petition at variance with the provision of the instrument or document will be governed by the terms of the exhibit when attacked by a demurrer.” (Syl. f 2.)
See, also, Missionary Baptist State Convention of Kansas v. State, 180 Kan. 501, 305 P. 2d 846, quoted with approval in Zehring v. Driskel, 184 Kan. 644, 646, 339 P. 2d 57, where it is said:
“. . . While a pleading is usually to be liberally construed in favor of the pleader, the whole of it must be considered together, and where one asserts a cause of action based, in part, upon exhibits the terms of which are contradictory to and at variance with allegations of the petition, the recitals to be found in the exhibits are controlling and determinative of the question whether the petition states a cause of action. . . .” (p. 504.)
For just a few of our other decisions, where such rule is stated, discussed and applied, see State, ex rel., v. Sinclair Pipeline Co., 180 Kan. 425, 304 P. 2d 930; Galleher v. City of Wichita, 179 Kan. 513, 519, 296 P. 2d 1062; State, ex rel., v. Hedrick, 178 Kan. 135, 139, 283 P. 2d 437; Croasdale v. Butell, 177 Kan. 487, 491, 280 P. 2d 593; Wood v. Stewart, 158 Kan. 729, 732, 733, 150 P. 2d 331.
See, also, 41 Am. Jur., Pleading, § 57, pp. 328, 329.
With the foregoing rule in mind it becomes necessary to examine the basic instrument on which plaintiff founds his cause of action. That, as we have pointed out, in final analysis, is the original lease attached to the petition. In this connection it is to be noted that while a court has power to interpret and construe a written instrument it has no authority to reform the instrument by rejecting words of clear and definite meaning and substituting others therefor (See Geier v. Eagle-Cherokee Coal Mining Co., 181 Kan. 567, 572, 573, 313 P. 2d 731, citing Sipes v. Pessemier, 144 Kan. 300, 58 P. 2d 1085). Stated in different fashion it is not the function of the court to make contracts for the parties but to enforce them as made (Zelinkoff v. Johnson, 185 Kan. 489, 345 P. 2d 665).
Turning to the lease it cannot be denied it states in clear and unambiguous terms that, unless written notice was given to the plaintiff (lessee) within ten days after the premises become untenantable, die lease ceased and became void. Moreover looking at other allegations appearing on the face of the petition, and giving them the benefit of inferences to which they are entitled in ruling on the de murrer, it becomes clear (1) that the defendant did not give the notice electing to restore the premises within the ten day period; (2) that the oral agreement relied on was entered into some time after the expiration of such period of time but not later than the early part of October 1959; and (3) that based on the terms of such oral agreement plaintiff is claiming to have held and retained a lease on the real property in question, under the terms of the original written lease for a period of time which, in any event, would have exceeded one year in duration.
In the face of the related conditions and circumstances, and when the rules to which we have heretofore referred are properly applied in accord with this court’s previous decisions, we are convinced that following the expiration of the ten day period the written lease, by its own terms, became null and void. With this point decided it becomes obvious that, under the allegations of his petition, and notwithstanding his claims to the contrary, plaintiff is actually in the position of attempting to state a cause of action founded upon a subsequent executed oral agreement, wherein he seeks to revive and reinstate the terms of the void lease contract, and thus establish a leasehold estate or interest in the real estate in question for a period of time exceeding more than one year.
Conceding, as plaintiff points out, that under our decisions (See, e. g., Bailey v. Norton, 178 Kan. 104, 283 P. 2d 400) it is settled that the terms of an existing written contract may be varied, modified, waived, annulled, or wholly set aside, by any subsequently executed contract, whether such contract be in writing or parol, it does not follow that the terms and provisions of a written agreement, which has become void and of no force and effect for reasons herein stated, can be revived and reinstated in that manner. In the last mentioned situation, as we understand it, questions relating to the status of the prior agreement depend upon the terms and provisions of the new contract — in this case an alleged oral agreement — including, of course, all questions pertaining to the validity of the subsequent instrument.
Thus we come to the all decisive question involved in this case. Does the petition, which, on its face, shows facts such as have been heretofore related, state a cause of action?
Our statute of frauds (Chapter 33, G. S. 1949), so far as here ' pertinent, provides:
“No leases, estates or interests of, in or out of lands, exceeding one year in duration, shall at any time hereafter be assigned or granted, unless it be by deed or note, in writing, signed by the party so assigning or granting the same, or their agents thereunto lawfully authorized by writing, or by act and operation of law.” (G. S. 1949, 33-105.)
“No action shall be brought whereby to charge a party . . . upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them; unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized in writing.” (G. S. 1949, 33-106.)
Even though the cases involving the subject now under consideration are limited, this court is not without controlling precedents dealing with the force and effect to be given the foregoing sections of the statute in situations which, although they are not identical, are somewhat similar to those here presented.
In Lane v. Ozias, 114 Kan. 46, 217 Pac. 331, we held:
“A lease of farming land for a term of one year beginning át a future date is an estate in land ‘exceeding one year in duration’ and cannot be performed ‘within the space of one year from the making thereof,’ within the meaning of the statute of frauds; and a lease so made by an agent without authority in writing signed by the party to be charged thereby is void; and the principal, disclosed or undisclosed, cannot be held in damages for failure to deliver possession of the land pursuant to such unauthorized contract of lease.” (Syl.)
And in the opinion said:
“The contract of lease having been made in June, 1919, for a term ending August 31, 1920, some fourteen months in the future, was within this statute.
“. . . Lawful authority to contract for a term which extended 14 months into the future could only be conferred in writing, if the principal, disclosed or undisclosed, did not choose to be bound by it and did nothing to ratify it, and where there was no element of estoppel involved. It obviously follows that the judgment in this case cannot stand.” (p. 48.)
In a later case, Hale v. Brown, 119 Kan. 303, 304, 239 Pac. 963, referring to what was then R. S. 33-105, and citing Lane v. Ozias, supra, we said that an oral promise to lease a farm for more than a year is void under the statute of frauds. That an oral contract to lease a farm for more than a year, comes within the same category as an oral contract to lease other real estate — here a business property — so far as application of the statute of frauds is concerned, cannot be questioned.
Moreover it is to be noted, that long ago in Pessemier v. Genn, 104 Kan. 287, 288, 178 Pac. 426, this court recognized that a demurrer, based on the ground a petition did not state a cause of action, was sufficient to raise the enforceability of a contract under the statute of frauds when, in the opinion, it said:
“Plaintiff does not quarrel with the general doctrine that a parole contract for the sale is unenforceable under the statute of frauds, but urges that defendant’s demurrer admits the truth of the allegations of his petition that the sole ground of defendant’s refusal was his desire to sell the land to another and his subsequent sale to the latter. Now, plaintiff says that he cannot rely on the statute of frauds.
“It is true that a demurrer admits the truth of all the facts well pleaded, but it does not follow that the demurrer goes no further. It challenges the legal effect of everything appearing in the petition.
“It challenges the legal effect of the parole contract, as well as the legal effect of the alleged explanation given by defendant for his refusal to carry out the contract. . . .” (p.288.)
Pessemier v. Genn, supra, also establishes that, where it appears from the face of the petition, a contract relied on as grounds for recovery is unenforceable by reason of inhibitions of the statute of frauds such pleading fails to state a cause of action.
After careful review of all questions raised by the parties and the decisions cited in support thereof, we are convinced the petition in this case shows on its face (1) that plaintiff was relying upon the terms of a subsequent oral agreement to establish a leasehold estate or interest in the real estate in question for a period of time exceeding more than one year or, if not, was bound to rely on that agreement as a matter of law to establish such interest and (2) that nothing appears on the face of such petition which takes the case out of the statute of frauds. Therefore, based on the decisions heretofore cited and what has been heretofore stated and held, we are constrained to hold the petition fails to state a cause of action and that the trial court erred in overruling the demurrer to that pleading.
The judgment is reversed with directions to sustain the demurrer to the petition.
Robb, J., not participating. | [
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|
The opinion of the court was delivered by
Holmes, J.:
This is an appeal by Clyne Foust (appellant) from an order of the district court granting summary judgment to the Board of County Commissioners of Shawnee County (Board) and the City of Topeka (Topeka) in an appeal by Mr. Foust from an order of the Board which denied a petition to incorporate the City of Sherwood.
The area sought to be incorporated lies southwest of Topeka. Nine hundred forty residents of the area filed a petition pursuant to K.S.A. 15-115 et seq. for the area to be incorporated as a third-class city to be known as The City of Sherwood. Hearings were held at which all three Shawnee County Commissioners participated, and on May 14, 1986, the Commissioners voted two-to-one in favor of granting incorporation. Commissioner Velma Paris cast the “No” vote. As the area sought to be incorporated lies within five miles of the city limits of Topeka, a unanimous decision by the Board was required under K.S.A. 1986 Supp. 15-123. On appeal to the district court, the City of Topeka was allowed to intervene.
At the outset, Topeka and the Board contend that appellant lacks standing to bring this appeal based upon the argument that, as Mr. Foust had originally sought to proceed under the incorporation statutes, K.S.A. 15-115 et seq., he has waived his right to challenge the constitutionality of the statutes. See Willoughby v. Willoughby, 178 Kan. 62, 283 P.2d 428 (1955). The trial court found that appellant did not lack standing in this case. K.S.A. 1986 Supp. 15-126(a) specifically provides that “[a]ny person who has an interest in or is aggrieved by the decision of the board of county commissioners . . . may appeal to the district court.” The specific statute granting authority to appeal prevails over the general rule of law that one who seeks affirmative relief under a statute cannot subsequently claim the statute is unconstitutional. We find the appellees’ assertion that appellant lacks standing to bring this appeal to be without merit. We now turn to the issues raised by the appellant.
Appellant asserts the unanimity requirement of K.S.A. 1986 Supp. 15-123 is unconstitutional because (1) it is an unlawful delegation of legislative authority, (2) it violates the equal protection clause, and (3) it violates the due process clause. The portion of the statute asserted to be unconstitutional reads:
“In addition to other requirements, if any of the territory wholly within one county is within five miles of an existing city, the territory shall not be incorporated except by the unanimous vote of the commissioners.”
The general rule applicable to a constitutional challenge of a statute has often been stated by this court. In City of Baxter Springs v. Bryant, 226 Kan. 383, Syl. ¶¶ 1-4, 598 P.2d 1051 (1979), we held:
“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.”
“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.”
“Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt.”
“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.”
Appellant contends the quoted portion of the statute results in the delegation of legislative power not to the Board, but to one commissioner who, acting alone, can prevent a unanimous vote for incorporation by overriding the decision of the majority of the board. The Kansas Constitution provides:
Art. 2, § 21. “Delegation of powers of local legislation and administration. The legislature may confer powers of local legislation and administration upon political subdivisions.”
Art. 12, § 5. “Cities’ power of home rule, (a) The legislature shall provide by general law, applicable to all cities, for the incorporation of cities . . . .”
K.S.A. 15-115 provides:
“It is the purpose of this act to provide by general law for the incorporation of all cities, as required by section 5 of article 12, of the state constitution.”
Cities and counties are political subdivisions of the state upon which the legislature may confer legislative power. Koppel v. City of Fairway, 189 Kan. 710, 712, 371 P.2d 113 (1962). Appellant does not contend that the legislature cannot delegate the authority to control incorporation of cities to the counties but instead argues that the delegation here is to one individual rather than to the Board. We have found no authority supporting appellant’s contention and he has supplied none.
The legislature, in its wisdom, has adopted numerous statutes which require more than a simple majority vote in matters determined by legislative bodies. Among them are K.S.A. 19-2907, K.S.A. 1986 Supp. 19-2920, and K.S.A. 75-3713 et seq. Here, K.S.A. 1986 Supp. 15-123 requires a unanimous vote of the board. That board is comprised of several individuals. By statute, those individuals are required to consider certain factors set forth by the legislature in determining whether to grant the incorporation. K.S.A. 15-121. There is a presumption that members of the board, as public officials, act faithfully and properly in the discharge of their duties. City of Wichita v. Board of Sedgwick County Comm’rs, 232 Kan. 149, 158, 652 P.2d 717 (1982).
Combined Investment Co. v. Board of County Comm’rs, 227 Kan. 17, 605 P.2d 533 (1980), involved an appeal from the denial of an application for-a zoning change pursuant to K.S.A. 19-2920. In discussing the unanimity requirement of the statute as it affected the scope of review on appeal, we stated:
“Whether zoning action is taken by one, three, or a dozen people sitting as a board, commission, or authority is immaterial; what is important and controlling under our law is that the action taken must not be arbitrary, capricious or unreasonable. Here the vote of one commissioner controlled the action of the commission; by the vote of Commissioner Mauk the motion to allow the change was defeated. The action of the commission as a whole — -controlled by that single vote — was to deny the petition for change. The action of the commission must be reasonable, and is subject to review on that basis, whether the action resulted from a minority or a majority vote. Technically, the district court was reviewing the action of the commission, not the vote of a single commissioner; but the vote of that commissioner controlled the action of the commission; it was the action of the commission; and any error in terminology notwithstanding, it was the action of the commission which the court held to be arbitrary and unreasonable.” p. 29. (Emphasis in original.)
The same situation exists here. Although incorporation was denied as a result of the vote of only one commissioner, the action taken was that of the Roard and not that of the one dissenting commissioner.
The requirement of a unanimous vote by the board of county commissioners when the area in question is within five miles of an existing city is not an unconstitutional delegation of legislative authority. Each individual commissioner casts his or her vote after considering the mandatory statutory factors, among other things, to determine the issue of incorporation. The legislature has provided mandatory guidelines and it cannot be said that requiring a unanimous vote on a matter of such important local concern as incorporation of an additional city is an unlawful delegation of legislative authority.
Next, appellant argues the unanimity requirement of the statute violates the concepts of equal protection and substantive due process as promulgated by the Fourteenth Amendment of the United States Constitution and sections one, two, and eighteen of the Bill of Rights of the Kansas Constitution. These issues will be considered together as, under the facts of this case, the applicable test to determine constitutionality under both concepts is the same.
Under the United States and Kansas Constitutions, equal protection concerns the disparity in treatment between classes of individuals who are in the same situation while due process concerns fairness between the governmental entity and the individuals dealing with it, regardless of how others in the same situation are treated. Ross v. Moffit, 417 U.S. 600, 609, 41 L. Ed. 2d 341, 94 S. Ct. 2437 (1974). The traditional standard for determining equal protection arguments, where, as here, there is no suspect classification or fundamental interest involved, is the “reasonable basis” or “rational relationship” test which mandates that the statute will only be unconstitutional if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. The test for due process arguments is similar: i.e., whether the statute has a real and substantial relation to the objective sought. State ex rel. Schneider v. Liggett, 223 Kan. 610, 614-616, 576 P.2d 221 (1978).
Here, appellant does not challenge the reasonableness of the classification utilized in K.S.A. 15-121 which requires the commissioners to consider an additional six factors if any of the territory sought to be incorporated is within five miles of an existing city. Instead, he claims the unlawful classification found in K.S.A. 1986 Supp. 15-123 is between those petitioners who have only to obtain approval of the petition by a majority of the board and those who must obtain approval by a unanimous vote. Appellant argues that the goal of the legislature to prevent unreasonable multiplicity of independent municipal governments is accomplished by the additional factors in K.S.A. 15-121 and that the unanimity requirement of K.S.A. 1986 Supp. 15-123 serves no additional purpose and is fundamentally unfair.
Appellant’s equal protection argument fails as there is no disparity in treatment between classes of individuals who are in the same situation. The portion of the statute requiring a unanimous vote applies to all parties who seek to incorporate a city which is within five miles of an already existing city. There is no disparate treatment between those similarly situated. The argument that the classification is between those who must obtain a majority vote from the commissioners and those who must obtain a unanimous vote is not persuasive because the two groups are not in the same situation: one group of petitioners lives in an area beyond five miles of an existing city and the other within five miles of an existing city. Therefore, applying the rational basis test and the reasonable relation test, the unanimity requirement of the statute is neither a violation of equal protection nor fundamentally unfair. By requiring a unanimous vote, the legislature sought to insure that incorporation is appropriate even though the area in question is in close proximity to an existing city. Due to the close proximity of the two territories and their competing interests of annexation versus incorporation, the legislature sought the additional safeguard that each commissioner, after considering the statutory factors, be of the opinion that incorporation of one territory would not be detrimental to the already existing city and the county as a whole. The requirement of a unanimous vote does have a reasonable basis and bears a rational relationship to the legitimate objectives of the legislature in adopting the statutes. The provision of K.S.A. 1986 Supp. 15-123 which requires a unanimous vote of the board of county commissioners to grant a petition to incorporate a third-class city when the area sought to be incorporated lies within five miles of an existing city does not violate either the equal protection or due process clauses of the United States or Kansas Constitutions.
Next, appellant contends the single vote of Commissioner Paris to deny incorporation, which prevented a unanimous decision by the Board, was arbitrary and capricious.
At the time of casting her negative vote, Commissioner Paris read the following prepared statement to explain her decision to deny incorporation:
“One of the earliest phrases of advice given to the County Commissioners relative to the pending decision was to the effect that we should not let emotion color our judgment; but that we should examine the facts and the data and decide on the basis of what will be in the best interests of Shawnee County as a whole.
“I have carefully considered this advice in coming to my own decision; I have thoroughly reviewed all of the written material and verbal testimony presented by both proponents and opponents of the proposal to incorporate the Sherwood area into a separate third-class city. I have taken a guided tour of that area, and have given careful consideration to all the factors cited in State statutes that relate to questions of incorporation.
“It is my conclusion that the proponents have not sufficiently weighed the future consequences of their proposal. Among my concerns for which their answers are not convincing are: how their plans for growth can be accomplished with the contractual limitation on water hook-ups; how future provision for public recreation can be adequately funded with a limited potential for revenue expansion; how reliance on other entities through contract for basic services, including a large share of insurance coverage and primary administrative tasks, can be perceived as a stable basis for long-range effective city government; nor how the addition of another city whose boundary is contiguous with that of Topeka, will strengthen the future harmonious and orderly growth of Shawnee County.
“The factual data presented by both sides may continue to be interpreted and analyzed; some may continue to debate the issue based on their particular interpretation. However, as has been stated, it is, finally, a matter of judgment as to what is in the best long-term interests of the people of Shawnee County, both urban and rural. In my own judgment, based on all that we have heard, the future strength and vitality and economic well-being of our county depends upon a strong, energetic, vital and unified City of Topeka, the Capitol City of our State.
“Therefore, mindful that my responsibility as a County Commissioner requires me to work for the brightest future possible for our entire county, I cannot support the request to allow a portion of the urbanized residential area to be incorporated as a separate city.”
The district court, acting as an appellate court, ruled Commissioner Paris did not act arbitrarily or capriciously for the following reasons: (1) she stated she considered all of the statutory factors, (2) her stated reasons to deny incorporation satisfied K.S.A. 1986 Supp. 15-123, and (3) her decision was consistent with the recommendations of the professional staff of the Topeka-Shawnee County Metropolitan Planning Commission.
Neither the district court nor this court on appeal is at liberty to substitute its judgment for that of the Board. The advisability of incorporation is not a concern of this court. Appellate review is restricted to judicial matters such as the construction of statutes and the application of the statutes to the facts of the case. To determine whether the district court properly discharged its function, this court makes the same review of the agency decision in the first instance as the district court does. City of Wichita v. Board of Sedgwick County Comm’rs, 232 Kan. at 151.
Appellant argues the decision of Commissioner Paris was not based on the statutory criteria, that she did not make specific findings relating to the statutory criteria, and that her “concerns” were not K.S.A. 15-121 factors. Furthermore, he urges this court to adopt a more stringent test of arbitrary, unlawful, or capricious conduct in cases where the decision of a single commissioner prevents a unanimous decision by the entire board of county commissioners.
K.S.A. 1986 Supp. 15-126 dictates the proper scope of appellate review to be:
“Upon appeal the district court shall have jurisdiction to affirm or, if the court is of the opinion that the decision of the board was arbitrary, unlawful or capricious, to reverse the decision complained of and direct the county commissioners to take proper action.” (Emphasis added.)
As pointed out earlier, Combined Investment Co. v. Board of Butler County Comm’rs, 227 Kan. 17, recognized that even though a decision may be controlled by one negative vote, the action being reviewed is that of the board and not that of the dissenting commissioner. The same standard of review prevails regardless of whether a petition for incorporation is approved unanimously or denied by one or more votes.
The burden to show a decision was arbitrary or capricious is on the complaining party and mere inferences or innuendos do not satisfy that burden. Boehm v. Board of County Commissioners, 194 Kan. 662, 665, 400 P.2d 739 (1965). The arbitrary and capricious test relates to whether a particular action should have been taken or is justified, such as whether an agency’s exercise of its discretion is reasonable or whether the agency’s action is without foundation in fact. In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 21, 687 P.2d 603 (1984); Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 381, 673 P.2d 1126 (1983). Arbitrary or capricious conduct is shown where an administrative tribunal’s order is based upon findings not substantially supported by evidence in the record. In re Certif. of Need App. by Community Psychiatric Centers, 234 Kan. 802, 806, 676 P.2d 107 (1984); U.S.D. No. 461 v. Dice, 228 Kan. 40, 50, 612 P.2d 1203 (1980).
In light of these general principles, the district court properly ruled the decision of Commissioner Paris was not arbitrary or capricious. She heard the statement of State Representative Joan Wagnon, who opposed the incorporation and identified the problems experienced by Johnson County, Kansas, due to a “proliferation of small incorporated cities in a large urban area.” Commissioner Paris had available a report prepared by the Topeka-Shawnee County Metropolitan Planning Commission which detailed the statutory factors to be considered. Generally, that report indicated the proposed City of Sherwood would be dependent upon other governmental entities for the essential facilities and services, that existing contracts for services could not be relied on over the long term, and that incorporation, while not preventing the growth of Topeka, would serve as a barrier to that growth. Appellant’s argument that Commissioner Paris’ “concerns” are not factors listed in K.S.A. 15-121 is without merit. That statute provides that the factors listed, among others, shall be considered by the county commissioners. Additionally, they may consider matters outside the evidence presented at the incorporation hearing. In re Reincorporation of Piper City, 220 Kan. 6, 13, 551 P.2d 909 (1976). The board is not bound by the preponderance of the evidence and may grant or deny incorporation even though the evidence favors a contrary result. Whether the commissioners give any individual factor or a combination of factors more weight than others is a matter left solely to them in their performance of a legislative function. City of Wichita v. Board of Sedgwick County Comm’rs, 232 Kan. at 158. The statute provides that the petition for incorporation shall be denied if it is determined, among other factors, that “the proposed incorporation would be otherwise contrary to the public interest.” Here, Commissioner Paris stated she considered the required statutory factors and evidence and reached a conclusion contrary to that of the other two members of the Board. The voluminous record before the court would adequately support a decision by the Board regardless of which way it went. There is certainly substantial evidence which would support a decision for incorporation as well as substantial evidence supporting the Board’s decision against incorporation. Under such circumstances, we cannot say the action of the Board (or of Commissioner Paris individually) was arbitrary or capricious.
Finally, appellant argues the trial court erred in granting the Board’s motion for summary judgment without a hearing or trial and that he was denied the right of discovery. It is also asserted that the granting of summary judgment was premature as the trial court had not received the transcript of the hearing before the Board at the time the district court decision was filed. Appellant wanted to question Commissioner Paris, either through discovery or at a hearing, regarding any conduct which may have had an effect upon her decision. The Board argues that the decision of Commissioner Paris was a legislative one and she should not be required to state how she arrived at any particular decision. Action by a board of county commissioners in determining the advisability of incorporation is a legislative function. In re Reincorporation of Piper City, 220 Kan. 6, Syl. ¶ 1. Appellant relies upon Piper City, where the depositions of two members of the board of county commissioners were allowed and considered by the district court on appeal, and City of Wichita v. Board of Sedgwick County Comm’rs, 232 Kan. 149, where the depositions of two of the commissioners and testimony of the director of the planning department was allowed and considered by the district court on appeal. Those cases recognize that in an appeal under K.S.A. 1986 Supp. 15-126 it is not error for the district court to receive and consider evidence in addition to the record from the hearing before the board of county commissioners. Likewise, those cases are not authority for the proposition that a party to such an appeal has a right to delve into the mental processes of board members in making legislative decisions. It is settled law in Kansas that courts will not interfere with the legislative process and, absent constitutional infringements, an appellate court does not examine the wisdom, justice, policy, or expediency of legislative actions. Leek v. Theis, 217 Kan. 784, 814-15, 539 P.2d 304 (1975).
It is also contended by the Board and the City of Topeka that appellant did not comply with Supreme Court Rule 141 (235 Kan. cx) in replying to the motions for summary judgment. See McCullough v. Bethany Med. Center, 235 Kan. 732, 683 P.2d 1258 (1984). In his response opposing the Board’s motion for summary judgment, appellant did not comply with Rule 141 by giving a concise summary of conflicting testimony or evidence, but stated he wanted to inquire, either through discovery or at a hearing on the appeal, into any conduct of Commissioner Paris which may have had an effect upon her decision.
The defense of incomplete discovery in summary judgment cases has been addressed by this court. In Gray v. Ray Gill, Frontier Industries, Inc., 208 Kan. 95, 97, 490 P.2d 615 (1971), it was stated:
“Ordinarily, a motion for summary judgment should not be granted when the opposing party is proceeding diligently with his pre-trial discovery, but has not had an opportunity to complete it. (Lawrence v. Deemy, 204 Kan. 299, 461 P.2d 770; Timmermeyer v. Brack, 196 Kan. 481, 412 P.2d 984; Brick v. City of Wichita, 195 Kan. 206, 403 P.2d 964.) On the other hand, when, as here, a party makes no suggestion to the trial court of any additional facts tending to support his position, he cannot escape summary judgment, if otherwise proper, on the mere hope that further discovery may reveal evidence favorable to his case. (See, Sade v. Hemstrom, 205 Kan. 514, 471 P.2d 340; Meyer, Executor v. Benelli, 197 Kan. 98, 415 P.2d 415.)”
Here, the appellant has failed to sufficiently show or allege facts which tend to support his position.
While the record reflects that the transcript of the proceedings before the Roard and the decision of the trial court were both filed with the Clerk of the District Court on August 21, 1986, appellant concedes in his memorandum that “the Court has apparently received the transcripts recently filed.” We are also advised that the transcripts were in the hands of the trial judge for several days prior to the filing of his decision. Although trial counsel did not have the transcripts available at the time of argument on the motion for summary judgment, no prejudice has been shown. Additionally, the transcripts were available prior to the trial court’s ruling on appellant’s motion to alter or amend the judgment.
The judgment is affirmed.
Lockett, J., not participating. | [
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The opinion of the court was delivered by
Prager, C.J.:
This is an appeal by the State in a criminal action in which the defendant, North Central Kansas Production Credit Association (PCA), was charged with a violation of a quarantine order issued by the Kansas Livestock Commissioner (K.S.A. 47-624).
The trial court dismissed the complaint on motion of the defendant on the basis that the defendant had insufficient notice of the quarantine order. The State appealed from the dismissal of the complaint.
For purposes of this appeal, the facts in the case are not in dispute and essentially are as follows: On October 11, 1985, the Kansas Livestock Commissioner established a quarantine on the farm of Dennis Hansen in Republic County, Kansas, pursuant to K.S.A. 47-611. The quarantine was based on a laboratory report indicating the presence of pseudorabies in Hansen’s hog operation. The livestock commissioner notified Hansen of the quarantine by a letter which enclosed an official quarantine, No. 35500, and which outlined procedures for complying with the quarantine and for a release therefrom. No letter of quarantine was sent to PCA, nor were notices of the quarantine posted on the Hansen premises or published in a newspaper or in the Kansas Register.
On February 21,1986, the district court of Republic County, in a civil action, ordered delivery of all the Hansen property, including the hogs, to the sheriff to satisfy a judgment obtained by PCA in a foreclosure action. On February 22, 1986, the hogs were removed from Hansen’s farm to another location pursuant to the district court order.
On April 15, 1986, the county attorney filed a complaint charging PCA with violating the quarantine under K.S.A. 47-624. Thereafter, PCA filed a motion to dismiss on the basis that the notice of quarantine given by the livestock commissioner was insufficient to give notice to defendant PCA regarding the quarantine. It was the position of defendant that the letter/notice to Dennis Hansen was insufficient to give notice of the quarantine to any person other than Hansen, because notice of the quarantine had not otherwise been published or otherwise circulated. It was the position of the prosecutor that, while the officers of PCA did not receive an official notice of the quarantine from the livestock commissioner, they had actual knowledge of the quarantine which they had obtained from area residents and local veterinarians.
The district court sustained defendant’s motion to dismiss, holding that, although the notice by letter to Dennis Hansen satisfied the requirements of notice under K.S.A. 47-611, such notice, having not been officially published or otherwise circulated, did not have the effect of according a general notice of the quarantine to any person other than Hansen. The district court held that, for a person to be guilty of a violation of a quarantine, he must have either actual knowledge by service of a notice by the commissioner or constructive knowledge from publication of a governor’s proclamation. Thus, the court reasoned that defendant PCA had received insufficient notice of the order of the livestock commissioner to be guilty of a violation of the quarantine. The State appealed the order of dismissal.
The basic issue presented to the court on appeal is whether actual knowledge by PCA of the quarantine order was sufficient for the defendant to be prosecuted under K.S.A. 47-624. At the outset, it would be helpful to examine the applicable Kansas statutes. K.S.A. 75-1901 provides for the appointment of a livestock commissioner (also known as the livestock sanitary commissioner) by the Kansas animal health board. The commissioner serves as executive officer of the Kansas animal health department. Among other duties prescribed by statute, K.S.A. 47-610 requires the commissioner to protect the health of domestic animals of the state from contagious or infectious diseases and he is authorized and empowered to establish, maintain, and enforce a quarantine to prevent the spreading among domestic animals of any contagious or infectious disease. K.S.A. 47-607d authorizes the commissioner to adopt such rules and regulations as he may deem necessary to carry out the purposes of the act.
K.S.A. 47-611 governs the procedure to be followed where a quarantine is to be issued:
“47-611. Quarantine, sanitary and other regulations; notice of quarantine; proclamation by governor; enforcement. When the commissioner shall have determined the necessity of a quarantine and other regulations to prevent the spread among domestic animals of any contagious or infectious disease the commissioner shall notify the governor thereof, who shall issue a proclamation announcing the boundary of such quarantine and the orders, rules and regulations prescribed by the commissioner which proclamation shall be published in the Kansas register, except that the commissioner may, if the area affected by the quarantine is limited in extent, dispense with the proclamation of the governor, and give such notice as the Commissioner shall deem sufficient to make the quarantine effective. The commissioner shall establish such quarantine forthwith and shall give and enforce such directions, rules, and regulations as to separating, isolating, handling, and treating, feeding and caring for such diseased animals, animals exposed to the disease, and animals within the quarantine which have not been immediately exposed, as the commissioner shall deem necessary to prevent those classes of animals from coming into contact with one another; and the livestock sanitary commissioner is hereby authorized and empowered to enter any grounds and premises to carry out the provisions of this act.”
K.S.A. 47-604 provides a penalty for violating a quarantine:
“47-604. Penalty for violating'act or quarantine. Except as otherwise provided in this act, any person who shall violate, disregard, or evade, or attempt to violate, disregard, or evade, any of the provisions of this act, or who shall violate, disregard, or evade, or attempt to violate, disregard, or evade, any of the rules, regulations, orders or directions of the livestock sanitary commissioner establishing and governing quarantine, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than one hundred nor more than five thousand dollars.”
K.S.A. 47-624 is the statute under which PCA was prosecuted. It provides as follows:
“47-624. Penalty for certain unlawful acts. That any person who shall have in his possession any domestic animal affected with any contagious or infectious disease, knowing such animal to be so affected, who shall permit such animal to run at large; or who shall keep such animal where other domestic animals, not affected with or previously exposed to such disease, may be exposed to such contagious or infectious disease, or shall sell, ship, drive, trade or give away such diseased and infected animal or animals which have been exposed to such infection or contagion; except by sale, trade, or gift to a regularly licensed disposal plant; or shall move or drive any domestic animal in violation of the rules, regulations, directions or orders establishing and regulating quarantine, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than one hundred nor more than five hundred dollars for each such diseased or exposed animal which he shall permit to run at large, or keep, or sell, ship, drive, or trade or give away, in violation of the provisions of this act; Provided, That any owner of any domestic animal which has been affected with or exposed to any contagious or infectious disease may dispose of the same after he obtains from the livestock sanitary commissioner a bill of health for such animal.” (Emphasis supplied.)
In determining the issue raised in this case, we should consider all of these statutes together to determine the legislative intent. In State, ex rel., v. Fadely, 180 Kan. 652, 308 P.2d 537 (1957), the court emphasized the importance of public health statutes. The court stated:
“Among all the objects sought to be secured by government, none is more important than the preservation of the public health; and, an imperative obligation rests upon the state through its proper instrumentalities or agencies to take all necessary steps to accomplish this objective (25 Am. Jur. Health, p. 287, § 3). Statutes enacted for this purpose should be liberally construed and the most extensive power may be conferred on administrative boards, either state or local, to carry out such purpose (39 C.J.S. Health, pp. 811, 813, § 2).” p. 665.
Courts of other states have recognized the importance of quarantine regulations. In State v. McCarty, 5 Ala. App. 212, 59 So. 543 (1912), the court stated:
“Quarantine regulations affect the state in its most vital spot — the health of its people, or, as in this case, the health of its live stock — and it is essential that, in construing statutes passed for the purpose of promoting such delicate and important subjects, great latitude should be allowed the Legislature in determining the character of such laws, and how, when, and by whom, in their practical administration, they should be applied. — Blue v. Beach, 155 Ind. 121, 56 N.E. 89, 50 L.R.A. 64, 80 Am. St. Rep. 159; Union Bridge Co. v. U. S., 204 U.S. 364, 27 Sup. Ct. 367, 51 L. Ed. 523; St. Louis Merchants’ Bridge Terminal Co. v. U. S., 188 Fed. 191, 110 C.C.A. 63.” pp. 225-26.
The defendant was charged in this case with a violation of K.S.A. 47-624. It should be noted that, under K.S.A. 47-624, any person who shall have in his possession any domestic animal affected with any contagious or infectious disease, knowing such animal to be so affected, who shall permit such animal to run at large or who shall keep such animal where other domestic animals may be exposed to such infectious disease shall be deemed guilty of a misdemeanor. This section of K.S.A. 47-624 is applicable where a person has actual knowledge that the animal is affected with a disease. There is no requirement that a quarantine order have been previously issued by the livestock commissioner. Later in K.S.A. 47-624, it is provided that any person who shall move or drive any domestic animal in violation of the rules and regulations establishing quarantine shall be deemed guilty of a misdemeanor. It is this portion of K.S.A. 47-624 which is the basis for the prosecution of PCA in the case now before us.
It should be noted that K.S.A. 47-611 authorizes the livestock commissioner, after the necessity of a quarantine has been determined, to notify the governor thereof, who shall issue a proclamation establishing the boundaries of the quarantine, which proclamation shall be published in the Kansas Register. A notice to the governor is not required in all cases; however, K.S.A. 47-611 does not require a notice to the governor or a proclamation to be published if the area affected by the quarantine is limited in extent, in which case the commissioner may dispense with the proclamation of the governor, and give such notice as the commissioner shall deem sufficient to make the quarantine effective. From the reading of these various statutes together, it is clear that K.S.A. 47-624 is violated where a person who has actual knowledge that an animal is affected with any contagious or infectious disease permits the animal to be moved or driven in such way as to expose other animals to the disease in violation of a quarantine issued by the livestock commissioner.
We have concluded that the trial court erred in dismissing the complaint for the stated reason PCA did not have notice of the quarantine order through service of the notice by the commis sioner or by publication in the Kansas Register. We hold that, if PCA had actual knowledge of the quarantine order obtained from persons or veterinarians in the area, that would be sufficient for the defendant to be prosecuted under K.S.A. 47-624.
This holding is consistent with the conclusion reached by appellate courts of other states where the issue has arisen. We note in particular State v. Butts, 3 S.D. 577, 54 N.W. 603 (1893), which involved a criminal prosecution for a violation of a quarantine order of the county superintendent of health. That case did not involve diseased livestock but concerned an individual citizen who was afflicted with diphtheria, a contagious and infectious disease, who left his place of residence in violation of a quarantine order. The court in Butts made it clear that openly going from his residence onto the public streets did not make him a criminal offender against the quarantine order, unless he knew of its existence. The court observed that such an order is unlike law, knowledge of which is charged against every one. The court noted that it was not alleged in the complaint that the order was served upon him, or that it was brought to his attention directly or indirectly. The court stated that to make his act criminal, it must be done with the knowledge, either actual or imputed, that it has been authoritatively forbidden, and there was nothing in the information showing any such knowledge upon the part of the defendant or any facts from which knowledge might be inferred. Clearly the court in Butts recognized that, if the defendant had had actual knowledge of the quarantine order, he could have been prosecuted for violation of the quarantine.
There is also a decision of the Criminal Court of Appeals of Oklahoma which, in our judgment, is exactly in point. I refer to Crane v. State, 5 Okla. Crim. 560, 115 Pac. 622 (1911). In Crane, the court held that a person on trial charged with having violated a local quarantine, promulgated by a livestock inspector, is entitled to show as a defense to the charge that he had no knowledge of the existence of the quarantine and no information or facts upon which he could be reasonably presumed to know of the existence of the same. The court stated as follows:
“In order for a person to be liable for prosecution for violations of a local quarantine established by live stock inspectors, they must have knowledge of the existence of such quarantine. We do not think it necessary for personal notice to be served on such person, but he must have such information that he could be reasonably presumed to know of the existence of the same.” p. 564.
We have not been able to find any other cases directly in point, nor have any other cases been called to our attention by counsel for the parties. The sole issue presented on the appeal is one of law. The facts in this case have not yet been fully developed. It is our holding on this appeal that, if the State has evidence to prove that the defendant had actual knowledge of the quarantine order and that the defendant violated the quarantine order, that evidence would be sufficient for the defendant to be convicted under K.S.A. 47-624, even though the defendant was not served with any official notice of the quarantine, and even though there had been no governor’s proclamation of the quarantine or any publication in a newspaper or in the Kansas Register.
The judgment of the district court is reversed and the case is remanded for further proceedings. | [
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|
The opinion of the court was delivered by
Rosen, J.:
This workers compensation appeal comes before the court on transfer from the Court of Appeals. The appellant, Carolyn Bergstrom, seeks review of an order by the Workers Compensation Board decision limiting her compensation under the “good-faith effort” doctrine articulated by the Court of Appeals in previous cases. We find that the good-faith effort doctrine is not grounded in statute and was therefore improperly applied by the Board.
The factual background can be summarized as follows. Beginning in December 2000, Bergstrom was employed by Spears Manufacturing, Inc., a manufacturer of plastic plumbing parts. As of June 2002, she worked as a production janitor for Spears. On September 23, 2002, she lifted a garbage can containing plastic residue purged from the production machine. When she put the can down, she began to experience pain in her back and was unable to continue the job. She informed her supervisor, who made out an accident report and assigned her to sorting parts for the rest of the day.
The following day, Bergstrom experienced extreme pain and was sent to a nurse practitioner, who prescribed pain medication. She returned to work a couple of days later and was assigned to sorting parts, a task that she could not carry out because she was unable to sit and bend over for an extended time. She was then reassigned to putting parts on a conveyor line (the “bar code” job), but she was unable to continue with that assignment because standing in one place caused her too much discomfort.
Bergstrom was referred to Dr. James Zeiders, an orthopedic surgeon, who directed her to stop working and to file for Social Security disability benefits. She then saw a succession of medical and psychological professionals, who conducted a number of tests on her. These included Dr. Anthony Pollock, an orthopedic surgeon; Dr. T.A. Moeller, a psychologist; and Dr. Chris Fevurly, a physician.
Bergstrom filed an application for a hearing before the Division of Workers Compensation. The administrative law judge (ALJ) awarded Bergstrom 34 weeks of temporary total disability compensation followed by permanent total disability compensation at the rate of $246.07 per week, not to exceed $125,000, for a permanent total general body disability. The Board set aside the ALJ’s award and remanded the matter for redetermination, to include consideration of the deposition of Dr. Moeller.
The ALJ suggested that Bergstrom attempt to return to work; when she did, Spears assigned her to the same conveyor line job that she was doing when Dr. Zeiders directed her to stop working. She stated that she was unable to perform the job for more than 3 hours because of pain in her back and leg and went home. Spears then terminated her employment.
On May 22, 2007, the ALJ entered a revised award that took into account Dr. Moeller’s deposition. The ALJ did not change the earlier disability determination or award amount. On a second petition for review, the Board entered an order extensively modifying the ALJ’s award, finding only a 10 percent permanent partial disability to her body as a whole. The Board awarded Bergstrom 34 weeks of temporary total disability compensation, followed by 39.6 weeks of permanent partial disability.
Bergstrom filed a timely notice of appeal with the Kansas Court of Appeals, and this court assumed jurisdiction over the appeal on its own motion.
In reducing the amount of her award, the Board found that Bergstrom did not exercise good faith when she failed to perform alternate job duties that Spears offered her after her injury. She contends the Board erred when it applied a good-faith effort requirement that is not contained in K.S.A. 44-510e.
The interpretation of statutory provisions in the Workers Compensation Act is a question of law over which this court has unlimited review. Hall v. Dillon Companies, Inc., 286 Kan. 777, 783, 189 P.3d 508 (2008); Casco v. Armour Swift-Eckrich, 283 Kan 508, 521, 154 P.3d 494 (2007).
The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). The legislature is presumed to have expressed its intent through the language of the statutory scheme, and when a statute is plain and unambiguous, the court must give effect to the legislative intention as expressed in the statutory language. Hall, 286 Kan. at 785.
When a workers compensation statute is plain and unambiguous, this court must give effect to its express language rather than de termine what the law should or should not be. The court will not speculate on legislative intent and will not read the statute to add something not readily found in it. If the statutory language is clear, no need exists to resort to statutory construction. Graham v. Dokter Trucking Group, 284 Kan. 547, 554, 161 P.3d 695 (2007).
K.S.A. 44-510e(a) reads in relevant part:
“The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the employee, in the opinion of the physician, has lost the ability to perform the work tasks that the employee performed in any substantial gainful employment during the fifteen-year period preceding the accident, averaged together with the difference between the average weekly wage the worker was earning at the time of the injury and the average weekly wage the worker is earning after the injury .... An employee shall not be entided to receive permanent partial general disability compensation in excess of the percentage of functional impairment as long as the employee is engaging in any work for wages equal to 90% or more of the average gross weekly wage that the employee was earning at the time of the injury.”
In Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 284, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995), our Court of Appeals examined the legislative intent underlying K.S.A. 1988 Supp. 44-510e(a) and concluded that the statute implicitly contains a requirement that injured workers exercise good faith in attempting to mitigate their wages lost to work impairments:
“Construing K.S.A. 1988 Supp. 44-510e(a) to allow a worker to avoid the presumption of no work disability by virtue of the worker s refusal to engage in work at a comparable wage would be unreasonable where the proffered job is within the worker’s ability and the worker has refused to even attempt the job. The legislature clearly intended for a worker not to receive compensation where the worker was still capable of earning nearly the same wage.”
In Copeland v. Johnson Group, Inc., 24 Kan. App. 2d 306, 320, 944 P.2d 179 (1997), the Court of Appeals expanded on its ruling in Foulk:
“In attempting to harmonize the language of K.S.A. 44-510e(a) [Furse 1993] with the principles of Foulk, we find the factfinder must first make a finding of whether a claimant has made a good faith effort to find appropriate employment. If such a finding is made, the difference in pre-and post-injury wages based on the actual wages can be made. This may lead to a finding of lesser wages, perhaps even zero wages, notwithstanding expert opinion to the contrary.
“If a finding is made that a good faith effort has not been made, the factfinder will have to determine an appropriate post-injury wage based on all the evidence before it, including expert testimony concerning the capacity to earn wages.”
Our Court of Appeals has applied this good-faith effort requirement in a series of subsequent cases. See, e.g., Gasswint v. Superior Industries Int'l-Kansas, Inc., 39 Kan. App. 2d 553, 185 P.3d 284 (2008); Robinson v. Southwestern Bell Telephone, 39 Kan. App. 2d 342, 180 P.3d 597, rev. denied 286 Kan. 1179 (2008); Deguillen v. Schwan’s Food Manufacturing, Inc., 38 Kan. App. 2d 747, 172 P.3d 71(2007), rev. denied 286 Kan. 1177 (2008); Mahan v. Clarkson Constr. Co., 36 Kan. App. 2d 317, 138 P.3d 790, rev. denied 282 Kan. 790 (2006); Parsons v. Seaboard Farms, Inc., 27 Kan. App. 2d 843, 9 P.3d 591 (2000); Lowmaster v. Modine Mfg. Co., 25 Kan. App. 2d 215, 219, 962 P.2d 1100, rev. denied 265 Kan. 885 (1998).
Most recently, however, in Gutierrez v. Dold Foods, Inc., 40 Kan. App. 2d 1135, 1142-43, 199 P.3d 798 (2009), a panel of the Court of Appeals cast doubts on the viability of the good-faith effort doctrine in light of the principle that courts' should limit their interpretation of statutes to the plain language that the legislature enacted.
This court has not previously addressed the judicial addition of a good-faith effort requirement to the statutory language, but it has recently examined workers compensation statutes in light of their plain and unambiguous language. We have consistently elected to refrain from reading language into the statutes that the legislature did not include. See, e.g., Hall, 286 Kan. at 785-88; Graham, 284 Kan. at 554; Casco, 283 Kan. at 521.
In reducing Bergstrom’s award, the Board found that Foulk and Copeland “require a good faith effort be exerted when considering post-injury job searches. The Board does not find that claimant put forth a good faith effort with regard to the bar code job.”
We can find nothing in the language of K.S.A. 44-510e(a) that requires an injured worker to make a good-faith effort to seek out and accept alternate employment. The legislature expressly directed a physician to look to the tasks that the employee performed during the 15-year period preceding the accident and reach an opinion of the percentage that can still be performed. That per centage is averaged together with the difference between the wages the worker was earning at the time of the injury and the wages the worker was earning after the injuiy. The legislature then placed a limitation on permanent partial general disability compensation when the employee “is engaging in any work for wages equal to 90% or more of the average gross weekly wage that the employee was earning at the time of the injuiy.” (Emphasis added.) K.S.A. 44-510e(a). The legislature did not state that the employee is required to attempt to work or that the employee is capable of engaging in work for wages equal to 90% or more of the preinjury average gross weekly wage.
Foulk and Copeland were decided contrary to the principle that an appellate court must give effect only to express statutory language, rather than speculating what the law should or should not be, and that we will not add something to a statute not readily found in it. See Graham, 284 Kan. at 554. In Hall, we pointed out that a history of incorrectly decided cases does not compel us to disregard plain statutory language and to perpetuate incorrect analysis of workers compensation statutes. 286 Kan. at 787-88. This court is not inexorably bound by precedent; it will reject rules that were originally erroneous or are no longer sound. See Coleman v. Swift-Eckrich, 281 Kan. 381, 388, 130 P.3d 111 (2006).
The Board’s inquiry into whether Bergstrom made a good-faith effort to assume alternate employment is not supported by the plain language of the workers compensation statutes. The Kansas Workers Compensation Act does not require a worker to seek or accept such employment.
K.S.A. 44-510e(a) contains no requirement that an injured worker make a good-faith effort to seek postinjury employment to mitigate the employer’s liability. Foulk, Copeland, and all subsequent cases that have imposed a good-faith effort requirement on injured workers are hereby disapproved.
Bergstrom’s second issue — that substantial competent evidence did not support the Board’s finding that she did not put forth a good-faith effort to engage in alternative employment that Spears offered her — is moot in light of our determination that the good- faith effort requirement is not a component of the workers compensation scheme.
Finally, Bergstrom contends that the Board relied on medical opinions that were obtained in violation of procedures outlined in the Workers Compensation Act. In particular, she challenges the Board’s reliance on Dr. Pollock’s opinion that the task to which she was assigned when she briefly returned to work fell within her work restrictions. She contends that Dr. Zeiders was her authorized treating physician, and no proper steps were taken to change her treating physician.
Bergstrom cites no statutory or caselaw authority establishing a formal procedure for changing authorized health care professionals.
K.S.A. 44-515(a) states in relevant part:
“After an employee sustains an injury, the employee shall, upon request of the employer, submit to an examination at any reasonable time and place by any one or more reputable health care providers, selected by the employer, and shall so submit to an examination thereafter at intervals during the pendency of such employee’s claim for compensation, upon the request of the employer, but the employee shall not be required to submit to an examination oftener than twice in any one month, unless required to do so in accordance with such orders as may be made by the director.” (Emphasis added.)
K.S.A. 44-515(e) states:
(e) Any health care provider’s opinion, whether the provider is a treating health care provider or is an examining health care provider, regarding a claimant’s need for medical treatment, inability to work, prognosis, diagnosis and disability rating shall be considered and given appropriate weight by the trier of fact together with consideration of all other evidence.” (Emphasis added.)
These statutes suggest that the Board properly considered the opinions of all the health care providers that were presented to it.
In addition, K.S.A. 2008 Supp. 44-510h(b) provides in relevant part:
“(1) If the director finds, upon application of an injured employee, that the services of the health care provider furnished as provided in subsection (a) and rendered on behalf of the injured employee are not satisfactory, the director may authorize the appointment of some other health care provider. In any such case, the employer shall submit the names of three health care providers who, if possible given the availability of local health care providers, are not associated in practice together. The injured employee may select one from the list who shall be the authorized treating health care provider. If the injured employee is unable to obtain satisfactory services from any of the health care providers submitted by the employer under this paragraph, either party or both parties may request the director to select a treating health care provider.
“(2) Without application or approval, an employee may consult a health care provider of the employee’s choice for the purpose of examination, diagnosis or treatment, but the employer shall only be hable for the fees and charges of such health care provider up to a total amount of $500. The amount allowed for such examination, diagnosis or treatment shall not be used to obtain a functional impairment rating. Any medical opinion obtained in violation of this prohibition shall not be admissible in any claim proceedings under the workers compensation act.”
This statutory language shows that a claimant may seek additional or alternative medical opinions, but the record does not show that Bergstrom sought to take advantage of the statutory scheme. The statute does not place a burden on the employer to obtain formal approval in referring a claimant to additional or alternate health care providers.
The Board properly considered all the medical opinions before it; in fact, it would have constituted error for the Board to have disregarded some of those opinions. The Board did not err in following the statutory evidentiary requirements.
Reversed and remanded for further proceedings consistent with this opinion.
McFarland, C.J., dissenting. The majority holds that K.S.A. 44-510e(a) does not require injured workers to make a good-faith effort to seek postinjuiy employment to mitigate wage loss. In so holding, it overrules Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995), and Copeland v. Johnson Group, Inc., 24 Kan. App. 2d 306, 944 P.2d 179 (1997), in which our Court of Appeals held that K.S.A. 44-510e(a) implicitly contains a requirement that injured workers make a good-faith effort to mitigate their wage loss. The majority reasons that the Court of Appeals in Foulk and Copeland violated the plain language principle of statutory construction by reading a good-faith mitigation requirement into the statute when no such requirement appeared in the plain language. I believe the major ity s decision overruling a 15-year-old statutory construction for no reason other than it would have applied the rules of statutory construction differently if faced with the issue, disregards long-established principles of stare decisis without justification.
Although stare decisis is not an “inexorable command,” Payne v. Tennessee, 501 U.S. 808, 828, 115 L. Ed. 2d 720, 111 S. Ct. 2597, reh. denied 501 U.S. 1277 (1991), it “is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. [Citation omitted.]” 501 U.S. at 827. “Adhering to precedent Is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be setded right.’ ” 501 U.S. at 827 (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 76 L. Ed. 815, 52 S. Ct. 443 [1932] [Brandeis, J., dissenting]).
This is especially true when interpreting statutes. “Considerations of stare decisis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and [the legislature] remains free to alter what we have done. [Citation omitted.]” Patterson v. McLean Credit Union, 491 U.S. 164, 172-73, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989), superceded by statute on other grounds Civil Rights Act of 1991, Pub. L. 102-166, 42 U.S.C. § 1981 (2006).
If the Court of Appeals in Foulk incorrectly read legislative intent into the statute, the legislature has had the opportunity to correct that error. That it has not done so in the 15 legislative sessions since Foulk mandates adherence to that precedent. It is well settled that where judicial construction of a statute has been in place for a number of years, the legislature is deemed to have approved the construction and that construction is as much a part of the statute as if embodied in it in plain and unmistakable language:
“[A] judicial construction of a statute placed upon its language by a united court for more than ten years must be deemed to have received the sanction and approval of the legislative bodies. If this court in the first instance mistook the purpose and intent of the statute, there has been an abundant opportunity for the law-making power to give further expression to its will, and that its failure to act amounts to a ratification of the interpretation placed upon that act by this court. Courts do not write legislation. That is the function of the legslature. Our duty is to declare and apply legslative acts and to construe statutes and constitutions in accordance with the will of the law-making power where its construction becomes necessary. When such construction has been given to a law and finally established as a part thereof, it is as much a part of it as if embodied therein in plain and unmistakable language. When that situation exists, it is the province of the legislature alone to change the law if it deems advisable. The courts should not attempt it. [Citations omitted.]” State v. One Bally Coney Island No. 21011 Gaming Table, 174 Kan. 757, 761-62, 258 P.2d 225 (1953).
See also Hall v. Dillon Companies, Inc., 286 Kan. 777, 785, 189 P.3d 508 (2008) (citing Halsey v. Farm Bureau Mut. Ins. Co., 275 Kan. 129, 136, 61 P.3d 514 [2003]) (when legislature fails to modify a statute to avoid a standing judicial construction of that statute, legislature is presumed to agree with court’s interpretation); State v. Rollins, 264 Kan. 466, 474, 957 P.2d 438 (1998) (legislature deemed to have adopted judicial construction that has been in place for 126 years); Windle v. Wire, 179 Kan. 239, 242, 294 P.2d 213 (1956) (fact that legislature, in 15 regular sessions, had not modified court’s construction of worthless check statute held to indicate legislature was satisfied with that interpretation).
This fact is even more compelling in the workers compensation context, for there is, perhaps, no other statutory scheme subject to such constant legislative scrutiny than our Workers Compensation Act. For example, looking just to the 2005-2006 legislative session, over 80 bills related to workers compensation were introduced. See Kansas Legislature Website (bill subject search): http:// www.kslegislature.org/legsrv-bill Subj/searchKeyword.do (visited July 10, 2009). There is no possibility that Foulk’s statutory construction went unnoticed by the legislature. Probably no other area of legislation is subject to more scrutiny by knowledgeable professionals than is workers compensation law. Employers and their insurers, attorneys specializing in representing injured workers, and labor organizations each keep a close watch on workers compensation statutes and proposed amendments thereto. Proposed changes are hard fought issues and frequently are subject to com promises. Nothing just slips by unnoticed. With this near-constant reexamination of our workers compensation statutes, the fact the legislature has not modified Foulk allows more than the mere inference of legislative agreement with our interpretation. It can be said with virtual certainty that the legislature agrees with its statutory construction.
Not only has the majority failed to consider the fact that the legislature has, in effect, adopted the good-faith mitigation rule as set forth in Foulk 15 years ago, it fails to give due consideration to any other factors relevant to the principle of stare decisis.
Before overruling precedent, the court should consider why departure from the rule of stare decisis is justified. Relevant factors include:
“(1) whether the decision sought to be overturned has proven to be intolerable simply in defying practical ‘workability’; (2) whether the decision is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation; (3) whether related principles of law have so far developed as to have left the rule established by the old decision no more than a remnant of abandoned doctrine; and (4) whether the facts have so changed, or have come to be seen so differently, as to have robbed the rule established by the old decision of significant application or justification.” State v. Marsh, 278 Kan. 520, 579, 102 P.3d 445 (2004) (McFarland, C.J., dissenting), overruled on unrelated grounds Kansas v. Marsh, 548 U.S. 163, 165 L. Ed. 2d 429, 126 S. Ct. 2516 (2006) (citing Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 854-55, 120 L. Ed. 2d 674, 112 S. Ct. 2791 [1992]).
Here, there is not even a suggestion that the good-faith mitigation rule is unworkable or unsound in any way. To the contrary, as noted above, it has been implicitly adopted by the legislature and has been a working part of our workers compensation system for 15 years. Additionally, there is no showing that the rule has been abandoned by subsequent developments in the law, and the majority does not so find.
There is also no showing or determination that the “premises of fact have so far changed [since the opinion] as to render its central holding somehow irrelevant or unjustifiable in dealing with the issue it addressed.” Planned Parenthood, 505 U.S. at 855. The premises underlying the decision in Foulk have not changed. K.S.A. 44-510e(a) still limits benefits for employees earning nearly as much as they were making at the time of the injury. Moreover, the Foulk court’s construction is as valid today as it was in 1994:
“[I]t would be unreasonable for this court to conclude that the legislature intended to encourage workers to merely sit at home, refuse to work, and take advantage of the workers compensation system. To construe K.S.A. 1988 Supp. 44-510e(a) [to allow a worker to avoid the presumption of no work disability by refusing to engage in work at a comparable wage] would be to reward workers for their refusal to accept a position within their capabilities at a comparable wage.” Foulk, 20 Kan. App. 2d at 284.
The majority has wholly failed to consider whether the Foulk rule has been “ ‘subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation.’ ” See Marsh, 278 Kan. at 580 (McFarland, C.J. dissenting) (quoting Planned Parenthood, 505 U.S. at 854). “ ‘The inquiry into reliance counts the cost of a rule’s repudiation as it would fall on those who have relied reasonably on the rule’s continued application.’ ” 278 Kan. at 580 (McFarland, C.J., dissenting) (quoting Planned Parenthood, 505 U.S. at 855).
Reliance consideration is an especially significant factor in workers compensation matters. Huge numbers of such cases are processed each year. For illustration, the following statistics are included. In 2006, the Division of Workers Compensation processed 16,185 applications for hearings; 7,194 hearings were held before administrative law judges; 594 applications for review were filed with the Workers Compensation Board; and the Workers Compensation Board issued 512 decisions. See Kansas Department of Labor Division of Workers Compensation, 32nd Annual Statistical Report Fiscal Year 2006, pp. 3, 17, 18 (January 2007). Relatively few decisions are appealed to the court system, and even fewer reach an appellate court.
Under such circumstances there is an exceptionally high reliance interest that participants in the workers compensation system have in the stability and predictability in the law that the policy of stare decisis provides. Yet the majority fails to consider such rebanee in cavalierly overrubng a 15-year-old statutory construction for no reason other than it would have applied the rules of statutory construction differently if faced with the issue in the first instance.
For these reasons, I dissent. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an action by Debra Stremski against the City of Wichita and two police officers, Bobby Wiley and Stan Phipps, arising from the placement of plaintiff s daughter, Toni Stremski, into custody. Plaintiff seeks monetary damages against said defendants under authority of the Kansas Tort Claims Act (K.S.A. 75-6101 et seq.) and the federal Civil Rights Act (42 U.S.C. § 1983 [1982]). The district court entered summary judgment in favor of these defendants and plaintiff appeals therefrom. It should be noted that defendants Clark V. Owens, II, and J. H. Reeves were dismissed from the action and no appeal has been taken from these dismissals.
Inasmuch as this action concerns what the police officers did in respect to Toni Stremski and the basis for their actions, the facts will be summarized from that perspective. Further, the facts stated will be those that are uncontroverted or, where appropriate, the plaintiff s contentions inasmuch as we are reviewing the propriety of a summary judgment.
On July 8, 1985, Janice Harmon (mother of plaintiff and grandmother of ten-year-old Toni) went to the Wichita Police Department. Mrs. Harmon advised Officer M. L. O’Brien that plaintiff had an alcohol problem and, when intoxicated, would abuse Toni. Mrs. Harmon further stated that she was Toni’s grandmother and that Toni was living with her. Toni had accompanied Mrs. Harmon to the police station, heard Mrs. Harmon’s statements to the officer, did not controvert any of the statements, and “seemed content to be with her grandmother.” A report was made by Officer O’Brien of what Mrs. Harmon had stated.
During the early evening hours of July 12, 1985, a call was received by Captain Stan Phipps, then serving as watch commander, from Mrs. Harmon. Phipps was told by Mrs. Harmon that she had taken custody of her granddaughter Toni in Oklahoma and that the child was residing with her in Wichita. She further advised that she was attempting to have her daughter (plaintiff) committed for alcohol abuse. Mrs. Harmon was concerned about what she should do if plaintiff attempted to retrieve Toni from Mrs. Harmon’s care. Captain Phipps asked if Mrs. Harmon had any papers granting her legal custody of Toni. Mrs. Harmon replied she had no such papers and Captain Phipps advised her she could not withhold Toni from plaintiff. Mrs. Harmon then advised Captain Phipps that plaintiff had abused the child and that Toni was “terrified” of her mother. Captain Phipps advised Mrs. Harmon that if plaintiff attempted to take Toni, the police department would intervene and take physical custody of Toni. Mrs. Harmon agreed with this procedure.
Approximately one hour later, Mrs. Harmon called Captain Phipps again and reported plaintiff was on her way to the Harmon home to get Toni. Captain Phipps dispatched Officer Bobby Wiley to pick up Toni. The child was not present when Officer Wiley arrived, as she had gone for some ice cream. Captain Phipps talked to Mrs. Harmon on the telephone and they agreed that Mrs. Harmon should bring Toni to the police department when the child returned. This was done and the child was taken into custody and immediately transported to the Wichita Children’s Home, a facility designated as a shelter facility by the Kansas Department of Social and Rehabilitation Services (SRS) as provided by K.S.A. 38-1528.
Sometime during the evening of July 12, 1985, prior to Toni being taken into custody, Officer Wiley contacted plaintiff and was told by her that Mrs. Harmon had kidnapped Toni from plaintiff in Oklahoma and was concealing her from the plaintiff.
The first issue is whether or not the police department had probable cause to take Toni into custody.
K.S.A. 38-1527(b) provides:
“A law enforcement officer may take a child under 18 years of age into custody when the officer has probable cause to believe that the child is a child in need of care and that there are reasonable grounds to believe that the circumstances or condition of the child is such that continuing in the place or residence in which the child has been found or in the care and custody of the person who has care or custody of the child would present a danger to the child.”
K.S.A. 38-1502(a) defines a child in need of care, in pertinent part, as follows:
“ ‘Child in need of care’ means a person less than 18 years of age who:
(1) Is without adequate parental care, control or subsistence and the condition is not due solely to the lack of financial means of the child’s parents or other custodian;
(2) is without the care or control necessary for the child’s physical, mental or emotional health;
(3) has been physically, mentally or emotionally abused or neglected or sexually abused.”
We conclude, without reservation, that probable cause existed under the statute to take the child into custody. The child was with her grandmother who stated the child’s mother (complainant’s daughter) had an alcohol problem, physically abused the child (with the child being terrified of mother as a result), and that the child’s mother was on her way to reclaim the child. The child’s mother (plaintiff) told the officer her mother (the child’s grandmother) had kidnapped the child from her custody in Oklahoma and was refusing to return the child. Thus, a confrontation was imminent during the evening hours of July 12, with the child caught in the middle. The grandmother’s statements would support a belief by the officer that the child could be in danger if she were in the mother’s control. The allegation by the mother that the grandmother had kidnapped the child and was concealing her from the lawful custodian (the mother) could certainly lead the officer to have concern about leaving the child with the grandmother. Hence, probable cause existed to believe Toni was a child in need of care. The officer’s action was reasonable — take the child into custody until the proper authorities could investigate and the matter be sorted out. The child would thus be protected and her whereabouts secured until a legal determination could be made.
Under the uncontroverted facts herein, there was no tort committed by the defendants in taking Toni into custody, so we need not concern ourselves with whether or not defendants have immunity under the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. This Act does not come into play in the absence of tortious conduct.
For her second issue, plaintiff contends the failure of the police department to notify SRS of Mrs. Harmon’s July 8 report to Officer O’Brien is actionable.
K.S.A. 38-1522 requires certain categories of individuals who have “reason to suspect that a child has been injured ás a result of physical, mental or emotional abuse or neglect or sexual abuse” to report the matter promptly to SRS. The categories include educators, health care providers, fire fighters, and law enforcement officers. The statute speaks repeatedly of injuries, an injured child, establishing who injured the child, etc. The much broader term “child in need of care” is not used in this statute. The statute makes it a crime for any person in one of the categories to fail to report on the injured child to SRS.
On July 8, 1985, Toni was present in Officer O’Brien’s office when Mrs. Harmon expressed her concern. No one contended Toni was suffering from any injuries at the time. Mrs. Harmon’s concerns on the welfare of Toni were prospective in nature based upon plaintiffs past conduct. What was presented to O’Brien was a domestic dispute between a mother and daughter concerning the daughter’s treatment of a granddaughter and did not escalate until July 12. These situations are frequently the result of family quarrels and often resolve themselves. Police officers have considerable discretion in handling such matters. Plaintiff s allegation that if SRS had been notified on July 8 its investigation would have resolved the controversy prior to the July 12 emergency situation is pure speculation. Further, there is no evidence that Toni was an injured child on July 8 within the mandatory reporting requirements of K.S.A. 38-1522. Additionally, this statute is for the protection of an injured child rather than a person who is suspected of injuring the child.
We conclude this issue is without merit.
For her third issue, plaintiff contends the district court erred in entering summary judgment on her 42 U.S.C. § 1983 cause of action.
It is not disputed that a parent has a liberty interest under the Fourteenth Amendment Due Process Clause in the custody and control of his or her child, but this does not translate to an absolute right to custody. Never is it disputed that states have a legitimate interest under the doctrine of parens patriae in the protection and welfare of children.
There are two essential elements to a civil rights claim under 42 U.S.C. § 1983: (1) that the conduct complained of was committed by a person acting under color of state law, and (2) that the conduct deprived a person of rights, privileges, or immunities secured by the Constitution and laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981).
Plaintiff does not challenge the constitutionality of K.S.A. 38-1527(b) which permits a law enforcement officer to take a child into custody where the officer has probable cause to believe the child is a “child in need of care” as that term is defined in K.S.A. 38-1502(a). We have previously concluded that probable cause existed under the statute to take the child into custody. That determination defeats plaintiffs claim under 42 U.S.C. § 1983. We conclude that the district court did not err in entering summary judgment on plaintiff s claim under 42 U.S.C. § 1983.
Other issues raised are considered and held to be either without merit or rendered moot by the conclusions reached herein.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Allegrucci, J.:
Plaintiff Loretta L. Tetuan filed the present civil action against defendant A.H. Robins Co., Inc., on January 29, 1982. The plaintiffs suit concerned personal injuries allegedly resulting from her use of an intrauterine contraceptive device known as the “Daikon Shield,” and alleged negligence, civil conspiracy, strict liability in tort, breach of warranty of merchantability, breach of express warranty, fraud, and gross and wanton negligence. On May 3, 1985, a jury returned a verdict in the plaintiff s favor for $1.7 million in compensatory damages and $7.5 million in punitive damages. Defendant Robins appeals.
The factual background relating to the plaintiff can be summarized as follows. Loretta Tetuan was born on February 11, 1952. She married Michael Tetuan with whom she had attended school. Plaintiff testified there were no difficulties in the marriage prior to her health problems. The Tetuans had two children: Michael, d.o.b. 12/25/69, and Christina, d.o.b. 7/31/71. Plaintiff did not finish high school and worked in the Ramada Inn laundry department in Topeka, Kansas. She had never had any serious illness other than appendicitis.
Because Christina was born with Down’s syndrome, Michael and Loretta decided not to have any more children for awhile, although they did plan to have more children eventually. Plaintiffs sister suggested that she try an intrauterine device (IUD). Plaintiff brought up the subject of an IUD with Dr. Robert Pfuetze on September 14, 1971.
On the same day, Dr. Pfuetze inserted plaintiff with a Daikon Shield but did not inform her of the brand of the IUD. Dr. Pfuetze had been detailed by Robins representatives on the Daikon Shield. Dr. Pfuetze did not tell her of any possible danger from infection and said only that her periods would be a little heavier.
Other than the heavier menstrual periods, plaintiff initially suffered no ill effects from the Daikon Shield. She resumed work at a new job at Josten’s Yearbook Company.
In 1974, Mr. Tetuan joined the United States Army and was stationed in Fort Carson, Colorado. Plaintiff accompanied her husband to Colorado. Because her menstrual flow increased, she went to the post clinic. She was told by an Army nurse that she should have her IUD removed to reduce the heavier flow. She was not told of any dangers from the Daikon Shield or of the possibility of infection. Her periods returned to normal after the firstvis.it. When Mr. Tetuan was discharged, the couple returned to Topeka.
In 1978, she went to Dr. Pfuetze for a Pap smear. She had not had any physical problems prior to this time. She inquired about having the IUD removed. According to plaintiff, Dr. Pfuetze told her, “You’ve worn it this long, I don’t think you’ll have any problem with it.”
On September 21, 1979, she went to another physician, Dr. Darrell Weber, after experiencing fever and severe pain in the pelvic area. She had missed a week or two of work because of the pain. Dr. Weber told her she had a pelvic infection and gave her some antibiotics. Dr. Weber did not mention her IUD as a possible source of the infection. Dr. Weber testified that he had received no warnings from Robins regarding the dangers of the Daikon Shield.
Because the antibiotics were ineffective in relieving the pain, she was hospitalized, given additional antibiotics, and then released. In March 1980, Dr. Weber removed the Daikon Shield. No one had yet indicated to her that the Daikon Shield IUD might be dangerous.
Because the pain still did not subside, in May 1980 she saw Dr. Lucien Pyle, who referred her to Dr. Charles Joss. In order to remove all the diseased tissue, on June 25, 1980, Dr. Joss performed a “total abdominal hysterectomy with bilateral salpingo oopher” — the complete removal of plaintiff s uterus, Fallopian tubes, and ovaries.
After the operation, the Tetuans’ marriage disintegrated and they filed for divorce in March 1981. Plaintiff now works at the American Bindery Company where she makes $4.15 per hour. She testified the operation made her feel less of a woman. Dr. Joss testified that “many women who have lost their pelvic structures have a deep feeling that they’ve lost their femininity and desirability to their husbands and become depressed and mentally sick this way.” Otherwise, her physical prognosis was generally good. Because of the loss of her ovaries, plaintiff will have to take synthetic hormones for the rest of her life. Testimony at trial indicated that women taking these hormones over a long period of time can experience dangerous side effects which, though not common, include
“increased risk of developing cancer of the lining of the womb, endometrial cancer. They’re at increased risk of other cancers like breast cancers, they’re at increased risk of liver disorders, of gall bladder disease, of abnormal blood clotting with thrombosis and embolisms, some of which are pretty frightening conditions, like stroke, coronary disease, embolism to the vessels of the eye and so forth, very serious kinds of problems can occur.”
Of course, plaintiff will not have to worry about endometrial cancer (cancer of the uterus). She no longer has a uterus.
Loretta Tetuan sued defendants Robins and Dr. Weber. The jury apportioned fault as follows: Plaintiff: 16%; Robins: 84%; Dr. Weber: 0%. The jury found for the plaintiff on the fraud count.
In order to understand the issues raised by this appeal, it is necessary to also summarize the history of the Daikon Shield.
The Daikon Shield is a white piece of plastic less than two centimeters in diameter. Roughly oval in shape, it contains four phalanges on either side which enable it to remain secure in the uterus and gives the shield a crab-like appearance. Attached to the shield is a black string 8-9 centimeters in length. As with all IUDs, no one knows exactly why the Daikon Shield inhibits conception.
The Daikon Shield IUD was originally developed by Irwin S. Lerner and Dr. Hugh Davis. The rights to the device were held by the Daikon Corporation. The Daikon Corporation was made up of Lerner, Davis, Dr. Thad J. Earl, and Robert E. Cohn. The Daikon Corporation began manufacturing Daikon Shields in late 1968.
On February 1, 1970, Dr. Davis published a study in the American Journal of Obstetrics and Gynecology entitled, The Shield Intrauterine Device: A Superior Modern Contraceptive. This article would soon become the core of Robins’ Daikon Shield promotional campaigns. In the article, Davis related his study of 640 Daikon Shield insertions, which he claimed established that the Shield had a 1.1% pregnancy rate per year on the life table method.
Later investigations and studies would raise serious questions about the original Davis study. Riostatistician Dr. Thomas D. Downs, in testimony, characterized the Davis study at trial as being of “very poor quality.” The Davis study did not identify the time frame in which the data was collected, the age structure of the subject population, or the method by which the population was selected. No information was given in the study on the length of time the women participated in the study. Downs testified that the Davis article “reads like an advertisement instead of a scientific piece of work.” Moreover, the Davis article improperly claimed superiority to the pregnancy rate for other IUDs, even though the data collected in the article dealt only with the Daikon Shield and used pregnancy rate figures from other sources for other IUDs. No control group was used by Davis in the 1970 article and Davis neglected to mention in his article the substantial financial interest he had in the Daikon Shield.
The 1.1% pregnancy rate asserted by Davis in his 1970 article aroused the interest of Robins. Prior to Robins’ purchase of the Daikon Shield rights, it sought to find out more about Davis’ study. On June 9, 1970, Dr. Fred A. Clark, an employee of Robins, filed a memorandum on his visit to Raltimore to meet with Davis. Like the original 1970 Davis study, the information contained in the Clark memo did not provide sufficient information to establish a scientifically accurate pregnancy rate for the Daikon Shield. However, the minimum possible pregnancy rate for the data in the Clark memorandum was 5.3%. In other words, prior to its purchase of the Daikon Shield, Robins had information which indicated that the Daikon Shield’s rate of pregnancy was nearly five times worse than Davis’ purported 1.1% rate, at a minimum.
The Clark memo reported, “Davis stated that the company which takes the Daikon Shield must move fast and distribute much merchandise and really make an inroad in ‘the next 8 months.’ My feeling was that others may be working on similar improvements for IUDs.” Robins decided to move fast. On June 12, 1970, A.H. Robins Co., Inc., purchased the rights to the Daikon Shield. Under the terms of the agreement, the Daikon Corporation transferred its patents for the Shield to Robins in exchange for outright cash payments, royalties from the continued sale of Daikon Shields, and employment of Lerner and Earl by Robins as consultants. Robins began to prepare for distribution of the Shield in 1971. The Shield was to be sold for $4.35. In late 1970, the'total costs for labor, overhead, materials, and freight amounted to only $.30 for each Daikon Shield.
While Robins’ main competition, Ortho’s Lippes Loop IUD, was already widely marketed, the Daikon Shield had not been produced yet in significant quantities. Moreover, Ortho had four years’ prior testing and experience with its IUD. The Daikon Shield had no pre-marketing testing. A June 8, 1970, internal Robins memo recognized that: “The device has not been subjected to any formal stability testing.”
In November 1970, Robins recognized in an internal memo the need for some form of study of the Daikon Shield. After outlining the subjects to be studied in future clinical studies, the memo stated: “The need for long-term studies stems (1) from the dearth of publishable data on the Daikon Shield for marketing support and (2) from the anticipated need for information available for presentation at the time of implementation of expected medical device legislation.” (Emphasis added.) Prominent by its absence from this list was the need to ensure product safety. At the time Robins began to market the Daikon Shield, there were no government requirements for pre-market testing for IUDs, but recommendations existed that all products be found to be effective and safe, and the 1969 World Health Organization Report recommended a two-year testing program prior to marketing.
In a 1970 memo marked “PERSONAL & CONFIDENTIAL” to W.L. Zimmer, president of Robins, one of Robins’ vice-presidents expressed concern over the new product line:
”1 worry that our line is limited, to say the least. Our competitors are generally able to offer several means of contraception, including that most widely-accepted sold and used, the O.C. pill. This could permit others to compete on the I.U.D. level on a low price basis, while they make their profits on the other more widely accepted and sold products.”
He expressed concern that Robins had
“no present or past R&D effort on contraception and contraceptive methods. . . .”
“I worry about the fact that we have no market knowledge or experience in our company and we are prepared to learn-on-the-job. Meanwhile our competitors have at least a certain amount of know-how and experiences available to them today.”
Robins was not only marketing an IUD without significant research experience, it had also instituted several “minor” changes in the size and shape of the Daikon Shield which had been produced by the Daikon Corporation. The internal Robins report announcing the design changes concluded: “Incidentally, we will not ‘announce’ the fact that these minor design changes have been made.”
At the time Robins began to produce the Daikon Shield, it had no evidence of the safety of the device; the only information it had on the efficacy of the device was the questionable Davis article, which was for a different design of the Shield. Another Robins memo discussed the Shield in December 1970: “Rob does not regard the DALKON SHIELD as an ‘established’ product. Perhaps in view of the design changes it is ‘less established’ or more vulnerable than it was.” The lack of knowledge about the Daikon Shield continued after Robins began distribution of the Shield: “At present [June 10, 1971] we have no ‘tangible’ evidence, i.e. statistics, of the performance of the current production model of the Daikon Shield.”
Accompanied by an extensive promotional campaign, Robins began to market the Shield nationally in January 1971. The core of Robins’ promotion for the Daikon Shield was that its product was “safe and superior” to other forms of birth control. Robins obtained hundreds of thousands of reprints of Davis’ 1970 article and gave them to its detailmen to give to physicians. The reprint given to physicians, however, did not include the label of “Current Investigation” which had originally appeared on the Davis article. Dr. Emanuel Friedman, an expert witness for plaintiff, testified that “Current Investigation” would indicate a preliminary report, something not yet established as scientifically valid.
Product cards prepared in September 1970 to be given by Robins detailmen to physicians lauded the overall superiority of the Shield’s pregnancy rate to the pill’s and other IUDs’, and claimed it was safe and produced no side effects on the body. Other cards prepared in November 1971 also stressed the 1.1% rate.
Robins also prepared, in September 1970, Patient Information Sheets entitled, “Daikon Shield: Answers to your patients’ questions.” The answers included:
“Are the IUDs safe?
“Many leading authorities believe they are the safest method of effective contraception available today. Unlike the Pill, they do not produce generalized side effects, such as headaches, blood clots, depression, breast tenderness, hair loss, weight gain, decreased sexual desire, etc.
“Is the Shield as effective as the Pill in preventing pregnancies?
“The pregnancy rates with the modem pills and the modern IUD are similar. The Shield prevents 99% of pregnancies, as do most oral contraceptives.”
Although earlier Robins Daikon Shield literature recommended removal of the Shield within two years, this recommendation was eliminated by November 1971. Literature provided by Robins in 1971 also stated: “The Shield is made of a plastic material which is neither dissolved nor ‘used up’ by the body tissues. It will provide protection for a period of years. Some women have used the same I.U.D. for five years or longer.” The literature did not note that the string attached to the Daikon Shield was made of nylon which does disintegrate within the body.
However, Robins’ promotion of the Daikon Shield was not limited to professionals. Even though the Daikon Shield was an “ethical product,” which means it could be dispensed only by licensed physicians, Robins apparently sought to create a market among consumers directly. A Robins memo dated October 1, 1971, stated that top priority had been given to a special promotion of the Daikon Shield in nonmedical and trade publications. The public relations firm of Wilcox & Williams was to be hired for this purpose.
Publications subject to the campaign included newspapers, Family Circle Magazine, Mademoiselle, Midwest Magazine, Ladies’ Home Journal, Time, Glamour, Parade, and Cosmopolitan. The intent of this “press coverage” may be found in the paper submitted by Wilcox & Williams to Robins on November 30, 1971, entitled “A Communications Program for A.H. Robins Company, Inc.” It outlined a program to obtain favorable reaction among the general public. Favorable reaction was defined in terms of increased sales of the Shield. A progress report on the promotional campaign defined the project as one “to obtain consumer coverage for the Daikon Shield.” (Emphasis added.)
The promotional campaign directed at doctors and consumers was apparently very effective. By September 1972, 80 percent of doctors inserting IUDs were inserting Daikon Shields. By February 13, 1973, over two million Daikon Shields had been sold.
Prior to its purchase of the Daikon Shield, Robins had only the questionable 1970 Davis article to substantiate the effectiveness of the Daikon Shield. However, the 1.1% rate was the basis for all of Robins’ promotion for the Daikon Shield because it allowed Robins to claim superiority over other IUDs and equality to oral contraceptives. Evidence at trial indicated that Robins knew the Daikon Shield was not as successful as advertised in preventing pregnancies.
In December 1972, Dr. T. Primrose of the Royal Victoria Hospital in Montreal wrote to Dr. Ellen J. Preston, of Robins:
“(B) My colleagues in other provinces have informed me that the pregnancy failure rate of the shield in their hands is up to 7-8 per 100 woman years which they find unacceptable.”
Also in December 1972, Robins received the following letter from Major Russel J. Thomsen, M.D., of the United States Army Hospital at Fort Polk, Louisiana, which stated, in part:
“Other than pointing out the inadequacies of this advertisement I will add a few observations about clinical useage [sic] of the Daikon Shield. Like most obstetricians-gynecologists, I was impressed'with the logic of the early claims for the Shield. I used it widely. But I (about two years later) no longer use it. My experience and that of many of my colleagues suggests that the actual long term (2 to 4 year) pregnancy rate with the Daikon Shield is actually about 10 per cent when term pregnancies, miscarriages, and ectopic pregnancies are considered with their respective major morbidities. And the complications of menorrhagia, metrorrhagia, uterine cramping, and pelvic inflammatory disease also seem high.
“I am recommending that you seriously evaluate again the Daikon Shield and its place in the clinical practice of birth control measures.
“I am also suggesting that you correct your advertising and issue appropriate cautionary statements to physicians. In fact, I am suggesting that you withdraw the Daikon Shield from the market until its safety can be established.”
Dr. Preston replied to a 1973 inquiry to have Robins consider funding a possible study on the Daikon Shield. “As I indicated to you during our telephone conversation, I am not very amenable at this point to expending a great deal of money or personnel time to analyze Daikon Shield data which is anticipated to be unfavorable.”
In June 1972, Robins began to receive reports of women experiencing septic abortions while wearing the Daikon Shield. A septic abortion occurs when a woman, after becoming pregnant, experiences an infection of the reproductive system which causes the spontaneous abortion of the pregnancy. Dr. Thad J. Earl, one of the developers of the Daikon Shield, also reported in June 1972:
“The next situation I have found is with women becoming pregnant and if the Shield is left in place the women abort at 3V4 to 5 months and become septic. I am advising physicians that the device should be removed as soon as a diagnosis of pregnancy is made. Numerous physicians have noted this. In my six pregnancies, I removed one and she carried full term, the rest all aborted and became septic. I therefore feel it is hazardous to leave the device in and I advised that it be removed. I realize that this is a small statistic but I feel we should correlate this data with other investigators across the country, because most men are experiencing the same problem.”
Other reports of severe infections continued in 1972 and in 1973. In April 1973, Dr. Anne Roard, a Robins doctor, sent a memorandum to Dr. Ellen J. Preston, which stated:
“As well as I can determine, there is a feeling or rumor (based upon the fact that several individuals have each experienced one case) that if a patient becomes pregnant while having a Daikon Shield in place, therapeutic abortion should be carried out post-haste. The reason for this is that patients with Daikon Shields are more likely to experience septic abortion than either (1) patients using other IUDs or (2) patients without IUDs who happen to experience spontaneous abortions.”
Dr. Preston responded:
“I do not know what relationship, if any, exists between the incidence of sepsis in patients pregnant with the Daikon Shield and the incidence of PID in the nonpregnant patient with a Daikon Shield. It has been suggested by some, particularly from the West Coast, that there is an increased incidence of PID associated with the Daikon Shield over that seen with other IUDs. I see no reason that this should be so, and none of my requests to physicians holding this view have resulted in any sort of documentation supporting this allegation.”
Information letters collected by Robins in its Spontaneous Septic Abortion File indicated that the total number of septic abortions associated with other IUDs was 39. The total number of Daikon Shield septic abortions was 250.
In 1974, because of growing reports about septic abortion and Robins’ discovery that Dr. C.D. Christian of the University of Arizona was preparing an article on the Daikon Shield and septic abortions, Robins invited numerous physicians to a Robins-sponsored conference on septic abortion and IUDs in February 1974. (Dr. Christian’s article, published in June 1974, reported on seven cases of septic abortions and five further cases of maternal deaths.) At the February 1974 conference, Robins made no mention of the information it had concerning the wicking phenomenon of the Daikon Shield tail string, no mention that Robins was “desperately” looking for a replacement string, or Dr. Earl’s 1972 report of septic abortions. (In August 1974, an unsigned Robins report states: “Five cases were reported from Thad Earl in June, 1972. These cases were inadvertently overlooked until the other day. No information at all is available on them.”).
The consensus at the February 1974 conference was strong enough that, on May 8, 1974, Robins issued its first “Dear Doctor” letter. The letter recommended that physicians remove Daikon Shields from women who became pregnant. Robins issued a press release stating that “insufficient information is available to establish any cause and effect relationship between the Daikon Shield and septic spontaneous abortion.”
On June 26, 1974, the FDA requested Robins suspend distribution of the Daikon Shield. Robins announced the suspension to its distributors: “This is NOT A RECALL, but a suspension of sale until further notice, which is expected during the latter part of August.” An accompanying press release stated, “neither A.H. Robins nor the FDA has any reason at this time to believe that women now using the Daikon Shield successfully should have the device removed.” In August 1974, Robins Public Affairs Vice-President Richard Velz reported in a memo: “You will note that the August 23 WASHINGTON POST article mentions the dangerous word ‘recall.’ However, that statement was in error and further coverage corrects that.” A Robins “Status Report for Daikon Shield” stated under the heading “Legal Implications,” the statement: “It is the opinion of [Robins attorney Roger L.] Tuttle that if this product is taken off the market it will be a ‘confession of liability’ and Robins would lose many of the pending lawsuits.”
After sales of the product were temporarily suspended by the FDA in June 1974, Robins continued its overseas distribution of Daikon Shields. A November 1974 Daikon Shield ad in the Australian and New Zealand Journal of Obstetrics and Gynaecology compared the Shield’s effectiveness to other IUDs. Its claim of superiority was based on Davis’ 1970 1.1% rate which a Robins memo had characterized as “not valid” in 1973.
In August 1975, Robins announced it was abandoning plans to re-market the Daikon Shield under new FDA regulations. The company announced that “A.H. Robins remains firm in its belief that the Daikon Shield, when properly used, is a safe and effective IUD.” The same assurance of safety and efficacy was made in Robins’ 1975 report to its stockholders.
On September 25, 1980, Robins issued a second “Dear Doctor” letter recommending removal of Daikon Shields from asymptomatic users:
“The medical literature does not establish a firm relationship between the duration of use of inert IUDs and an increased risk of pelvic infection generally; but a relationship has been suggested by recent literature, particularly when the causative organism is Actinomyces israelii. Cases of pelvic actinomycosis which cannot be explained on the basis of direct extension from the gastrointestinal tract have been observed most commonly among long-term IUD users.”
Robins soon received several requests from physicians and women requesting payment for the removal, which Robins refused. Robins’ Director of Medical Services, Dr. Fletcher Owen, Jr., responded that the second “Dear Doctor” letter “was not intended to be construed as a ‘recall’ ” of a “defective and potentially life-threatening product.”
On October 26, 1984, Robins sent out its final “Dear Doctor” letter, in which Robins recommended removal of any Daikon Shields remaining in place and offered to pay for removal, noting that “[t]here is substantial medical opinion that the continued use of the Daikon Shield may pose a serious personal health hazard to users.” However, Robins has continued to state that the Daikon Shield is safe.
Shortly after the final “Dear Doctor” letter, Owen appeared on a National Public Radio program in which he characterized the wicking phenomenon as a “red herring.” At trial, Robins’ board of directors member and ex-president, W.L. Zimmer, III, testified that the Daikon Shield was “safe and effective.”
The Daikon Shield, like most IUDs, contains a string which descends from the uterus through the cervix and permits the user to ensure the device is in place. Unlike other IUDs, however, the Daikon Shield contains a string which is composed of 200 to 400 individual filaments enclosed within a nylon sheath. Other IUDs contain monofilament strings. The Daikon Shield string sheath does not enclose the ends of the string and the filaments are exposed.
The possibility that an IUD string might “wick”, i.e., transport fluid by capillary action, was raised prior to Robins’ purchase of the Daikon Shield. The string selected for the Daikon Shield was the nylon-encased multifilament string. On June 29, 1970, the Robins product management coordinator reported: “The string or ‘tail’ situation needs a careful review since the present ‘tail’ is reported (by Mr. Lerner) to have a ‘wicking’ tendency.”
E. Wayne Crowder was quality control supervisor at Chap Stick, a subsidiary of Robins. Robins had transferred the responsibility for assembly of the final Daikon Shield device to Chap Stick to minimize costs. In March 1971, Crowder suggested to Lerner that melting the string ends would be more effective in eliminating moisture and bacteria. Lerner stated he would think about it.
Crowder testified that the multifilament string commonly broke during tying operations and that, in the summer of 1971, Crowder rejected some 10,000-12,000 strings for sheath breakage. The rejection was later overruled by Quality Control at Robins. Crowder testified that string breakage was a continual problem.
Crowder tried a simple experiment in June 1971. He placed one end of a Daikon Shield string in a beaker of water. Several hours later, he discovered he could squeeze water out of the other end of the string. Crowder reported this to his supervisor, Julian Ross, at Chap Stick and, in July 1971, Crowder met with Ross and Chap Stick president Daniel French and told him about his wicking theory and experiment. Crowder suggested the problem could be solved by heat-sealing the string’s ends and demonstrated with a cigarette lighter. French responded that heat-sealing would cost too much and that Robins would not accept any changes in production then. To ensure that Robins was informed of his concerns, Crowder included comments on wicking in his report to French on the problem of string stiffness.
On September 2, 1971, a Robins quality control supervisor wrote to Robins’ medical department about concerns he discovered after a visit to the Chap Stick plant, including “[wjicking and bacterial problems associated with a multifilament nylon suture versus a sheathed nylon suture.” The same report also stated that a heat sealing solution had been suggested for the string stiffness problem, but concluded: “Flame sealing . . . would create another production problem.” The significance of the wicking tendency of the tailstring of an IUD is that it provides an avenue for bacteria to travel from the vagina into the uterus, causing infection.
Beginning in 1972, Robins began a search for a replacement string. Robins tested several different types of string material, including a more expensive teflon string. However, none of these strings was used outside of experiments.
In 1973, Robins received several reports of PID (pelvic inflammatory disease) associated with the Daikon Shield. In November of that year, a Robins pharmacist noted:
“Dr. Kitty [Ellen] Preston has received reports of the string breaking and/or having visible weak spots. She has requested that tests be run on the string as well as the shields. Her main interest lies with those strings that were in situ for two years or more.”
Robins had also received other reports about the Daikon Shield string. Dr. Stewart Templeton of the Robins subsidiary in Horsham, England, wrote to Robins to inquire about any possible information on the Daikon Shield and PID. Dr. Templeton wrote that he had received complaints from an English user of the Daikon Shield who discovered cases of severe PID among his patients, which he felt was caused by the string acting as a wick along which bacteria traveled from the vagina into the uterine cavity.
Throughout 1974, Robins conducted tests on the wicking nature of the Shield string. In October 1974, a memo by a Robins vice-president commented on the hearings of the FDA committee considering whether to lift or retain the ban on sales of the Daikon Shield. The memo noted:
“In summary, Dr. Clark stated that our critics are unable to prove that the string is the causative factor in the cases associated with septic spontaneous abortions. On the other hand, we are unable to prove conclusively that it is not the causative factor.”
Dr. Templeton telexed Robins in November 1974, raising the same solution Wayne Crowder had suggested in 1971. He asked, “WHY DON’T WE JUST HEAT-SEAL THE DISTAL AND/OR PROXIMAL ENDS OF THE PRESENT STRING[?]” A Robins interoffice memo by Dr. Ellen Preston to Robins’ medical department vice-president discussed the suggestion, stating:
“I agree. It is too late to ‘heat seal’ now. We need to abandon the ‘multi-filament’ string. Heat sealing would have been a good thing to have done 4 years ago.”
In February 1975, Dr. Howard J. Tatum of The Population Council, et al., published their study, “The Daikon Shield Controversy: Structural and Bacteriological Studies of IUD Tails,” in the Journal of the American Medical Association. The study concluded:
“[T]he appendage of the Daikon Shield is patent to a liquid medium andean and does function as a wick for the passage of fluid throughout its entire length by capillary action.”
Among the witnesses at trial were Dr. Judith Haber, a clinical microbiologist. Working for Biskind Laboratories in Burlingame, California in 1974, Dr. Haber performed experiments requested by Robins. Dr. Haber testified that her experiments, the results of which were sent to Robins, involved examining Daikon Shield strings removed from human users. All of the strings showed some bacteriological growth; 45% showed significant bacterial growth. Haber also testified that, because of the extremely small size of bacteria, the knots in the Daikon Shield string did not prevent their passage.
In 1983, Dr. Harvey Bank produced similar results in a study of the Daikon Shield multifilament string. Bank examined used strings, finding bacteria present in every one. He found that fluid similar in viscosity to body fluids in the vagina could wick through the length of the tail string in about 90 minutes. No fluid motion existed for monofilament strings or for multifilament strings that had been heat sealed. Finally, Bank concluded that live bacteria could ascend and exist in the string.
Bank testified at trial that the experiments were simple and could have been performed by anyone with proper equipment. Also testifying was Dr. Daniel Roberts, who examined Daikon Shield strings removed from human users. Roberts found that all the nylon sheaths had undergone partial or complete disintegration. The deteriorated state of the nylon sheath provided an additional avenue for bacteria to escape from the string into the uterus. Moreover, while the cervical mucus plug normally prevented bacteria from ascending the external sides of the IUD strings, the nylon sheath of the Daikon Shield string prevented the bactericidal agents of the mucus plug from killing bacteria within the string.
Expert testimony was also introduced at trial comparing PID rates for the Daikon Shield and other IUDs. The 1976 Center for Disease Control (CDC) report by Cates, et dl., indicated the Daikon Shield produced a PID risk rate three times higher than other IUDs. The 1983 Lee-Ory study concluded the Daikon Shield had a PID risk eight times higher than for women who do not use any IUD. Moreover, where the PID risk for other IUDs declined over time, the Daikon Shield PID rate increased with time, so that the risk eventually reached 15.6 times the non-user rate.
Although there were several other studies introduced by Robins to establish the lack of any relationship between the Daikon Shield and PID, there appears to be substantial evidence in the record questioning the quality of these studies, which were funded in part by Robins.
In 1971, Roger Tuttle, a member of Robins’ legal department, was placed in charge of Robins’ products liability cases. Beginning in 1972, cases involving the Daikon Shield, including PIDs, began to “trickle” in. However, after the first case to reach trial on the merits, Deemer v. A.H. Robins Co., Case No. C-26420 (Dist. Ct. Sedgwick County, Kan. filed Oct. 1974), Robins President W.L. Zimmer, III, on August 15, 1974, sent the following memo to fifteen Robins officers and employees:
“You are requested to immediately search your pertinent files for any letters, memos or notes on oral or written communications relating in any way to the thread utilized for the tail for the Daikon Shield and send them to Ken Moore. Of particular interest are any references to ‘wicking’ of the tail. To the extent that you have had any oral communications with third parties on this subject which are not memorialized in writing, please submit a memo on any such communication to Mr. Moore.
“This project is of utmost importance, and should be completed by Friday, August 16.”
Tuttle testified that Robins began a program to destroy documents relating to the wicking phenomenon. The destruction program was ordered on February 2 or 3, 1975. Although Tuttle did not personally observe the destruction of documents, pursuant to orders, he instructed Robins employees to destroy documents and was informed that it had been accomplished. Tuttle was ordered to search for and destroy documents by Robins’ chief counsel Forrest, who told Tuttle he had discussed the destruction program with Zimmer. Tuttle testified that hundreds of documents were destroyed in a draft furnace. Tuttle secretly saved copies of some of the documents, but the vast majority of the documents were completely destroyed.
Forrest told Tuttle that he blamed Tuttle for allowing the Clark memorandum of June 9, 1970, to come to light in the Deemer case. Forrest said he did not ever want anything like that to happen again, and the only way to ensure that was if the documents no longer existed.
Additional facts will be set out and discussed as necessary to determine the issues in this appeal.
Robins first contends that “such a large volume of irrelevant, immaterial, and inflammatory evidence” was introduced at trial that “prejudice to Defendant permeated the entire trial.” Robins recites a long list of allegedly prejudicial evidence, or statements in closing by plaintiff s counsel upon that evidence, which it terms “error,” including the following: 1) Evidence of a different pregnancy rate for the Daikon Shield than the 1.1% Robins claimed; 2) evidence of perforations of .the uterus by the Daikon Shield; 3) evidence of spontaneous septic abortions associated with the Daikon Shield; 4) other miscellaneous evidence, including a suit filed by Dr. Earl against Robins; a medical journal dated April 11, 1985; Robins’ judgment in an antitrust case; references to suits against Robins; and references to medical studies in 1981 and 1982.
The plaintiff s action was grounded in part upon fraud: Robins’ deliberate misrepresentation and concealment of the defectiveness of the Daikon Shield. In Minx v. Mitchell, 42 Kan. 688, 692, 22 Pac. 709 (1889), this court stated: “[W]here fraud is alleged, it is always permissible to prove every act of the party charged, connected in any way with the subject-matter of the fraud.” Similarly, in Culp v. Bloss, 203 Kan. 714, 718, 457 P.2d 154 (1969), this court held that other actions of the defendant were “relevant and admissible for the purpose of showing defendant’s motive and intent to defraud the plaintiffs.”
A similar issue was raised in U.S.D. No. 490 v. Celotex Corp., 6 Kan. App. 2d 346, 629 P.2d 196, rev. denied 230 Kan. 819 (1981). The plaintiff sued defendant Celotex for fraud in the construction of a defective roof. Celotex argued on appeal that the trial court had erred by allowing the introduction of evidence of other Celotex roof failures around the country. The Court of Appeals rejected that argument:
“The evidence of prior roof failures was not introduced by plaintiff to show that the two-ply roof of the El Dorado High School was defective, nor was it used to indicate that the causes of the problems on previous roofs were related to the causes of the problems on the El Dorado High School roof. The actual purpose of the introduction of these documents was to prove Celotex’s knowledge of the defect that gave rise to the duty to warn. As to USD 490’s breach of warranty and fraud theories of recovery, the evidence of prior complaints was also relevant to show Celotex’s state of mind insofar as its representation is concerned and to prove Celotex’s knowledge of its truth or falsity or its reckless disregard of its truth or falsity.” 6 Kan. App. 2d at 359.
Citing this court’s holding in Culp, the Celotex court concluded:
“Although Celotex makes much of the fact in its brief that the roofs and roofing problems in the other cases were dissimilar, all of the complaints introduced were about two-ply roofs. We also note that internal memoranda of Celotex made reference to the fault of the two-ply roof, regardless of how the problems were manifested.” 6 Kan. App. 2d at 360.
In this case, the evidence of Robins’ knowledge of the higher pregnancy rate, perforations, and septic abortions was directly relevant to show Robins’ consistent failure to reveal the true nature of its product, and its continuing failure to warn. The theme of Robins’ promotion of the Daikon Shield was that it was “safe and effective.” The great weight of evidence at trial was that it was neither, and that Robins was aware it was not.
“Fraud is normally a secretive act and must be concealed for success,” Chute v. Old American Ins. Co., 6 Kan. App. 2d 412, 422, 629 P.2d 734 (1981), and thus “considerable latitude should be granted in the introduction of evidence to prove the fraud.” 6 Kan. App. 2d at 422 (citing Brakefield v. Shelton, 76 Kan. 451, 453, 92 Pac. 709 [1907]). In the present case, the evidence complained of by Robins, the reports of spontaneous abortions, the reports of perforations, and the reports of a much higher pregnancy rate were all relevant to show Robins’ continuing concealment of information from doctors and from women.
In Craig v. A.H. Robins Co., Inc., 790 F.2d 1 (1st Cir. 1986), Robins made the same argument before the First Circuit. Robins attacked the relevancy of evidence relating to the Daikon Shield’s pregnancy rate. The Court of Appeals rejected the argument, stating that evidence of “the frequency of pregnancies experienced by Daikon Shied users . . . [helps to] form part of a pervasive picture of covering up a defective product and contin uing to merchandise it by misrepresenting both its efficacy and its safety.” 790 F.2d at 4.
In Hilliard v. A.H. Robins Co., 148 Cal. App. 3d 374, 410-11, 196 Cal. Rptr. 117 (1983), the court rejected a similar argument by Robins, stating:
“The question remains, however, whether evidence of allegedly ‘false’ or inaccurate pregnancy rates is inadmissible as claimed by defendant Robins. Dr. Dekle, who fitted plaintiff Hilliard with the Robins’ IUD, testified he relied, in part, on what he was told by detailmen and what he had seen in Robins’ promotional material in using and recommending the Daikon Shield. He was dubious about the low pregnancy rate claimed for the Daikon Shield, yet he did not anticipate the rate would exceed two percent based on Robins’ promotional efforts and his experience. This evidence was clearly admissible and relevant. If the evidence showed that the rate was substantially higher than the advertised rates in 1972, when Daikon Shield was placed in plaintiffs uterus, the doctor might not have used that IUD or perhaps any IUD.”
In the present case, Dr. Pfuetze also testified that he relied upon Robins to properly test its product.
Neither was Robins successful before the Supreme Court of Colorado. In Palmer v. A.H. Robins Co., Inc., 684 P.2d 187 (Colo. 1984), the plaintiff had experienced a septic abortion rather than a pelvic inflammatory disease. The court held that Robins’ Daikon Shield adverse reaction reports were admissible, even where they involved injuries other than septic abortions:
“The adverse reaction reports constituted legally relevant evidence on the issue of notice to Robins of the potentially dangerous character of the shield. Robins’ knowledge of reported adverse consequences from the use of the shield was a significant component of Palmer’s claim that, by failing to eliminate these dangers or to give warning of them, Robins prevented her and her physician from making an informed decision on the use of the shield as a contraceptive device. The adverse reaction reports rendered the existence of notice of a dangerous or defective product more probable with the evidence than without it. [Citation omitted.]
“Although the adverse reaction reports included references to untoward consequences other than septic abortions, the nature of these other reported incidents did not impair the legal relevancy of the evidence. These other incidents were probative of notice to Robins that something might well be amiss with its product.” 684 P.2d at 199.
Robins complains of plaintiff s counsel’s reference in closing argument to Robins’ antitrust lawsuit, the Hartz settlement (but not, apparently, to the original evidence of the Hartz settlement). The financial position of Robins was in issue because of the claim for punitive damages. Robins received $42 million under the Hartz settlement, and it was therefore relevant as to punitive damages.
Robins complains of a “reference to law suits.” The complaint is somewhat misleading. The reference by plaintiff s counsel in closing argument did not involve use of the other pending Daikon Shield cases for any improper purpose. Plaintiff s counsel was stressing Dr. Tatum’s credibility by noting that his tests proving the string’s wicking action occurred prior to his subsequent testimony in Daikon Shield litigation. It should be noted that Robins, as well as the plaintiff, consistently attacked the other’s compensated witnesses for appearances in prior Daikon Shield litigation. We find no merit to Robins’ challenge to this evidence and conclude the trial court did not err in its rulings on the evidence.
Robins next contends there was no evidence to justify submitting the claim of fraud to the jury. Robins’ contention is based on a lack of reliance by the plaintiff or her doctors upon any representations by Robins as to the Daikon Shield, or if there was reliance, that it was the cause of plaintiff s injuries.
When a verdict is challenged for insufficiency of the evidence or as being contrary to the evidence, it is not the function of this court to weigh the evidence or pass on the credibility of the witnesses. If the evidence with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, will support the verdict, the verdict will not be disturbed on appeal. Toumberlin v. Haas, 236 Kan. 138, 689 P.2d 808 (1984).
The existence of fraud is a question of fact and we are limited to determining whether the verdict is supported by substantial evidence. Keeping in mind that fraud is never presumed and must be proven by clear and convincing evidence, we turn to the record in the instant case.
Plaintiff did not know the IUD she wore was a Daikon Shield until after her injuries and after it had been removed. When Dr. Pfuetze inserted the Daikon Shield in 1971, he did not mention what brand it was. Therefore, Robins argues plaintiff did not rely upon any representations by Robins.
Robins further argues that there was no evidence that Dr. Pfuetze relied upon representations that the Daikon Shield was safe and effective when he inserted the device in plaintiff in 1971. Robins claims he was aware of potential dangers of IUDs, including specific possible problems with infection. In 1978, Robins argues, Dr. Pfuetze was aware of specific problems of infection in Daikon Shield users, and he advised plaintiff of this problem and recommended removal. Thus, regardless of Robins’ failure to inform Dr. Pfuetze about wicking problems, there was no causative effect on Dr. Pfuetze’s decision to insert the Daikon Shield, since he was already aware of the potential problem that would result from wicking, if it occurred. As to Dr. Weber, Robins argues that, when in 1979 he made the decision not to remove the Daikon Shield, he had not been “detailed” by anyone from Robins nor relied upon any representations attributed to Robins.
The factual conclusions Robins makes from the evidence are not supported by the record. Dr. Pfuetze testified that he had been detailed by Robins representatives prior to the insertion. He testified that he was aware there was some danger of infection associated with IUDs, but that he did not discover until later the full dangers of infective disease. Dr. Pfuetze testified that he had relied upon Robins for adequate testing of its device prior to marketing. Dr. Pfuetze did not tell plaintiff of any dangers associated with IUDs. If Dr. Pfuetze had been told that the Daikon Shield string could wick bacteria, he would never have used it. If plaintiff had known of the dangers of the Daikon Shield, she would never have used it.
In 1978, about a year before plaintiff s symptoms began, she again saw Dr. Pfuetze for a bad cold. Based upon information he had read in medical literature, Dr. Pfuetze recommended removal of the device. However, while he told her that removal might be preferable, he also did not insist on it. Removal would be imperative only if she became pregnant. Dr. Pfuetze told her that, since she had worn the device this long, she should not have any trouble with it.
Plaintiff saw Dr. Weber in 1979 when the infection began. Dr. Weber did not remove the device but treated her with antibiotics. Dr. Weber testified that, if he had received information in 1979 similar to that Robins released in its third “Dear Doctor” letter in 1984, he would have immediately removed the device.
The argument that there was no reliance in this case is simply incredible in light of the evidence. Both the woman using the device and the doctor inserting it testified they would not have used the Daikon Shield if they had been informed of its true nature. Dr. Weber testified he would have immediately removed the Shield in 1979 rather than first treating plaintiff with antibiotics if he had known of the Shield’s dangers.
Dr. Pfuetze’s recommendation that removal of the IUD might be preferable was based on his reading of general medical literature, which did not disclose the full dangers of the Daikon Shield that Robins had concealed. Dr. Pfuetze, in 1978, was only following the limited information that Robins had released in 1974 in its first “Dear Doctor” letter, that the Daikon Shield should be removed from pregnant wearers to prevent septic abortions. Because of Robins’ failure to fully inform doctors of the dangers of the Daikon Shield, Dr. Pfuetze told plaintiff that, since she had worn the device for so long, she should not have any trouble with it.
That Loretta Tetuan did not know the device within her was a Daikon Shield, and that Robins made no representations directly to her, is irrelevant. IUDs are ethical products — that is, they are available only through licensed medical care providers. In Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 681 P.2d 1038, cert. denied 469 U.S. 965 (1984), we held that the manufacturer of an ethical drug has a duty to warn the medical profession of dangerous side effects of its products of which it knows, has reason to know, or should know, based upon its position as an expert in the field. This duty is a continuing one, and a breach of that duty by the manufacturer will result in the manufacturer being directly liable to the patient. The rationale for adopting such a rule was stated in Terhune v. A.H. Robins Co., 90 Wash. 2d 9, 14-15, 577 P.2d 975 (1978):
“The reasons for this rule should be obvious. Where a product is available only on prescription or through the services of a physician, the physician acts as a ‘learned intermediary’ between the manufacturer or seller and the patient. It is his duty to inform himself of the qualities and characteristics of those products which he prescribes for or administers to or uses on his patients, and to exercise an independent judgment, taking into account his knowledge of the patient as well as the product. The patient is expected to and, it can be presumed, does place primary reliance upon that judgment. The physician decides what facts should be told to the patient. Thus, if the product is properly labeled and carries the necessary instructions and warnings to fully apprise the physician of the proper procedures for use and the dangers involved, the manufacturer may reasonably assume that the physician will exercise the informed judgment thereby gained in conjunction with his own independent learning", in the best interest of the patient. It has also been suggested that the rule is made necessary by the fact that it is ordinarily difficult for the manufacturer to communicate directly with the consumer.
“While recognizing the efficacy of this rule as applied to prescription drugs, the plaintiffs question its applicability to devices such as the Daikon Shield. In advising upon the selection of a contraceptive, they say, the physician is not attempting to cure a malady and does not ‘rely upon his many years of education and experience’ to select an appropriate medication. We do not see this as a significant distinction. The physician does not confine his practice to the curing of maladies. He is concerned with the total health and physical well-being of his patients and appropriately gives advice upon preventive measures. Certainly the insertion of the Daikon Shield requires a physician’s services, his knowledge and his skill. While the physician does not make the final choice but leaves that to the patient, he advises the patient with respect to the advantages and disadvantages of various choices, as was done in this case, and it is he who supplies and inserts the device.
“The fact that the patient makes the final choice among suggested contraceptives (or decides not to use any at all) does not constitute a distinction which makes the general rule inapplicable. We can readily conceive of situations in which a physician gives the patient a choice of courses to follow. There is, for example, a patient’s choice between continuing to endure a physical ailment or submitting to surgery or some other course of treatment; an obese person’s choice among diets suggested by the doctor; and a surgery patient’s choice of anesthesia where, in the doctor’s opinion, a choice is permissible.
“In any such situation which may come to mind, the patient is expected to look to the physician for guidance and not to the manufacturer of the products which he may use or prescribe in the course of treatment.”
We apply that same rationale to plaintiff s action for fraud against Robins, and we hold that, where a patient relies on a physician for treatment or advice as to an ethical or prescription device, justifiable reliance by the physician on misrepresentations or concealment by the manufacturer of that device constitutes justifiable reliance by the patient. Loretta Tetuan relied upon Dr. Pfuetze, as her doctor, to insert a safe device. The testimony at trial was that both doctors in general, and Dr. Pfuetze specifically, relied upon manufacturers to test their products and warn of any dangers.
Robins was told by Dr. Davis that it would have to “move fast” if it wanted to successfully enter the IUD market. Robins moved fast. With one intensive promotional campaign directed at medical professionals, and another designed by a New York public relations firm to plant news stories to attract the interest of the general public, Robins was able to capture a large part of the IUD market. By 1972, 80 percent of doctors prescribing IUDs were prescribing Daikon Shields. Robins achieved this success by publicizing Dr. Davis’ pregnancy rate, which it knew was false and misleading, and by concealing information about the dangers of the Shield.
Finally, even though plaintiff had never received any direct promotions or representations from Robins, as Dr. Pfuetze had, she still had a right to rely upon Robins. In allowing the Daikon Shield to remain inside her, she relied upon Robins’ failing to come forward with the information it possessed. She relied upon Robins' malicious silence which, at the time of her injuries, had lasted for more than ten years. Fraud includes “anything calculated to deceive, including all acts, omissions, and concealments involving a breach of legal or equitable duty, trust, or confidence resulting in damage to another.” Goben v. Barry, 234 Kan. 721, Syl. ¶ 8, 676 P.2d 90 (1984).
“ ‘While the broad outlines of fraud have been indicated by regarding it as including any cunning, deception, or artifice used, in violation of a legal or equitable duty, to circumvent, cheat, or deceive another, the forms it may assume and the means by which it may be practiced are as multifarious as human ingenuity can devise, and the courts consider it unwise or impossible to formulate an exact, definite, and all inclusive definition thereof.’ ” Citizens State Bank v. Gilmore, 226 Kan. 662, 667, 603 P.2d 605 (1979) (quoting 37 C.J.S., Fraud § 1, p. 204).
Fraud may arise by the concealment of facts which legally or equitably should be revealed, as well as by affirmative misrepresentation. 226 Kan. at 667. The deliberate suppression of a fact that a party has a duty to disclose is fraud, Jenkins v. McCormick, 184 Kan. 842, 339 P.2d 8 (1959). The evidence in this case viewed in the light most favorable to the plaintiff is sufficient to support the jury’s finding of fraud. We find no merit in Robins’ argument.
Next, Robins attacks jury instruction No. 16 on numerous grounds, first claiming that it was “misleading, confusing, and improperly instructed the jury upon the law.” Essentially, Robins’ argument is that the instruction omitted essential elements of fraud under Kansas law. Instruction No. 16 reads:
“In connection with the claim of the Plaintiff based on fraud, the jury is instructed as follows:
“Fraud must be proved by clear and convincing evidence. To be clear and convincing, evidence should be ‘clear’ in the sense that it is certain, plain to the understanding, unambiguous, and ‘convincing’ in the sense that it is so reasonable and persuasive as to cause you to believe it.
“If the jury finds by clear and convincing evidence that either the labeling or the advertising of the Daikon Shield IUD was false and that A.H. Robins Company, Inc., either knew that they were false or were recklessly made without knowledge concerning the truth or falsity of the claim made in the labeling or the advertising and you further find by clear and convincing evidence that the false labeling and advertising caused the selection of the Daikon Shield by the Plaintiffs physician and you further find that the Daikon Shield caused the injuries complained of by Plaintiff, then you will be justified in basing a verdict in favor of the Plaintiff on the grounds of fraudulent misrepresentation.
“If the jury finds by clear and convincing evidence that the defendant, A.H. Robins Company, Inc., during the time that Plaintiff was using the Daikon Shield knew that the continued use of the device by women constituted a hazard, you are instructed that they had a duty to timely and effectively make that known in a way reasonably calculated to reach the women users. Warning to the medical community may be adequate unless the jury finds by clear and convincing evidence that such a warning was or would be either insufficient or ineffective. If you find by clear and convincing evidence that the A.H. Robins Company did not give a sufficient and effective warning, as described herein, and you further find that the failure to do so caused the injuries complained of by the Plaintiff, then you would be justified in basing a verdict in favor of the Plaintiff on fraudulent concealment.
“To recover on her claim of fraudulent misrepresentation, Plaintiff must sustain her burden as to each element set forth in this instruction concerning that claim. To recover on her claim of fraudulent concealment, Plaintiff must sustain her burden as to each element set forth in this instruction concerning that claim. Plaintiff need not prove both claims. However, if she fails to sustain her burden on her claim of fraudulent misrepresentation and on her claim of fraudulent concealment, you will be required to decide the claim based upon fraud in favor of the Defendant A.H. Robins Company, and you should so indicate that on the verdict form and proceed to decide the case on the other issues presented in these instructions.”
Robins did not object at trial to instruction No. 16 on the grounds now alleged — that the instruction was misleading or confusing, or that it improperly stated the law. The objection made at trial to instruction No. 16 by Robins was that the evidence did not support a finding of reliance, that the physician inserting the Daikon Shield should not have been considered Robins’ agent, or that no instruction at all should have been given on fraud:
“MR. BUCK: Sixteen, we object to the Court’s allowing the theory of fraud in this case, fraudulent misrepresentation and fraudulent concealment. This is not a proper case, as a matter of law, for the type of common law fraud recognized in the Kansas cases. We also — it’s also our position that there’s not enough evidence as a matter of law to allow this theory to go to the jury; and we also object to the use of the physician as the agent for Robins for purposes of finding reliance. In other words, when you’re having common law fraud, there is no direct reliance by the party injured or allegedly injured; therefore, there is no cause of action for fraud on that grounds. Also, there’s also no evidence of reliance by plaintiff in this case such as to support an action for fraud.”
Robins did not object to the provisions contained in instruction No. 16 as improper statements of the law. K.S.A. 60-251(b) provides:
“No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he or she objects and the grounds of his or her objection unless the instruction is clearly erroneous.” (Emphasis added.)
Where a party makes only a general objection to an instruction, he or she may not later raise new attacks against a specific provision of the instruction unless it is clearly erroneous. Thompson v. General Finance Co., Inc., 205 Kan. 76, 93, 468 P.2d 269 (1970). Except as to those specific grounds enumerated by Robins at trial, our inquiry is limited to determining if the instruction is clearly erroneous.
Robins properly points out that intent to deceive and reliance are elements of fraud in Kansas. The misrepresentation must be known to be untrue by the person making the statements, or made with reckless disregard for the truth, and reliance thereon must be reasonable and justifiable. Hutchinson Travel Agency, Inc. v. McGregor, 10 Kan. App. 2d 461, 701 P.2d 977, rev. denied 238 Kan. 877 (1985). The party to whom a misrepresentation is made must also rely upon the misrepresentation to his detriment. Minnesota Avenue, Inc. v. Automatic Packagers, Inc., 211 Kan. 461, 507 P.2d 268 (1973).
As to the intent requirement, the instruction obviously met the requirement of Kansas law. The instruction required the jury to find, by clear and convincing evidence, that Robins’ labeling or advertising was false and that Robins “either knew that they were false or were recklessly made without knowledge concerning the truth or falsity of the claim made in the labeling or the advertising.”
The instruction given was prepared by the trial court specifically for this case. Although it does not speak expressly of “reliance,” the instruction validly reflects the legal requirements for reliance. The instruction requires the jury to find, by clear and convincing evidence, that Robins’ misrepresentations “caused the selection of the Daikon Shield by the Plaintiffs physician and you further find that the Daikon Shield caused the injuries complained of by Plaintiff.”
The reliance element of misrepresentation serves the function of causation in fact: that the misrepresentation causes someone to act or refrain from acting. Restatement (Second) of Torts § 546, Comment b (1976). To satisfy the requirements of misrepresentation, it “must appear that the defendant’s tortious conduct has in fact caused the plaintiff damage.” 2 Harper, James & Gray, Law of Torts § 7.13 (2d ed. 1986). The false representation must play a “material and substantial part” in causing another to adopt a particular course of conduct. Prosser, Law of Torts § 108, p. 714 (4th ed. 1971). In instruction No. 16, the magic word “reliance” was not used, but the effect was the same: the jury was required to find that Robins’ misrepresentations caused Dr. Pfuetze to use the Daikon Shield which, in turn, caused Loretta Tetuan’s injuries. The jury was thus required to find reliance, although that term was not expressly stated. Indeed, the instruction was more favorable to Robins than the law itself, since it apparently required the jury to find that the misrepresentations were the cause of Dr. Pfuetze’s use of the Daikon Shield. Normally, reliance may be found where the misrepresentation “played a substantial part” in the other party’s conduct. Restatement (Second) of Torts § 546, Comment b.
A different matter is presented by the fact that the instruction does not require a finding of justifiable reliance. Ordinarily, the reliance upon another’s misrepresentations must be shown to be justifiable in order to recover for fraud. Hutchinson Travel Agency, Inc. v. McGregor, 10 Kan. App. 2d 461. However, the instruction is not clearly erroneous. An instruction is clearly erroneous only if there is a real possibility that the jury would have returned a different verdict. Powers v. Kansas Power & Light Co., 234 Kan. 89, 671 P.2d 491 (1983).
The testimony introduced at trial clearly indicated that physicians in general necessarily rely upon the representation of pharmaceutical manufacturers. Robins provided utterly no evidence which would suggest Dr. Pfuetze was not justified in relying on Robins’ claims of safety and effectiveness. On the basis of the evidence presented at trial, there was no real possibility a jury could have found Dr. Pfuetze’s reliance unjustified.
Robins argues that its fraudulent misrepresentations and concealment were not the “cause” of plaintiff s injuries because, when she saw Dr. Pfuetze again in 1978, and Dr. Weber in 1979, both “had independent knowledge from medical literature concerning the problems possibly associated with IUDs.” The record does not support Robins’ contention. Dr. Pfuetze testified he knew there was some danger of infection, but that he did not know the full dangers posed by the Daikon Shield. Both doctors testified that, if they had been fully informed of the Daikon Shield’s dangers, they would have either immediately removed it or would never have inserted it in the first place. Causation plainly exists. The doctors had received some information from medical literature on the dangers of IUDs, but they did not know of the overwhelming amount of information Robins was concealing — or attempting to destroy.
Robins’ next argument is rather novel, to say the least. Robins suggests that the instruction was invalid because “[w]hether the product caused the injury is not a proper inquiry for fraud. The test is whether any misrepresentation caused Plaintiff s injury.” The case to which Robins cites, Canterbury Court, Inc. v. Rosenberg, 224 Kan. 493, 582 P.2d 261 (1978), does not support this novel proposition, nor does any other Kansas case. Canterbury provides only that fraud requires reliance, and that the reliance result in injury. The suggestion that a distinction should be made between the “fraud” (Robins’ misrepresentations) and the item that is the subject matter of the fraud (the Daikon Shield), and that only the former can “cause” the injury, is completely without any authority. It is twisted logic at its best. The trial court instructed the jury that it must find that the misrepresentation caused Dr. Pfuetze to use the Daikon Shield, and that the Daikon Shield caused injury to Loretta Tetuan in order to find fraud. There is no error.
Next Robins argues that Dr. Weber had a duty to warn plaintiff. When Dr. Weber treated plaintiff, he was aware of the potential problems associated with IUDs. According to Robins, since the jury found Dr. Weber without fault, he either adequately warned the plaintiff, relieving Robins’ duty to warn, or he did not adequately warn, and therefore there is no causation by Robins. Dr. Weber had a duty to warn plaintiff only of those dangers “within his knowledge.” Robins’ interpretation of the facts finds no support in the record. Dr. Weber was not aware of the specific dangers of the Daikon Shield. The portion of the record to which Robins cites establishes only that Dr. Weber “had read articles on different problems associated with all types of the IUDs [including the] Daikon Shield.” The record does not say whether these were articles critical of the Daikon Shield, or whether they were the results of some of the “favorable” studies to which Robins solely devoted its funding assistance. In any case, Robins ignores that part of the record which deals with the extent of Dr. Weber’s knowledge of the Daikon Shield dangers. Dr. Weber was not aware of the type of “string” utilized by the Daikon Shield or that it could wick bacteria through the vagina into the uterus. He further testified that, had he known about these facts, he would have immediately removed the Daikon Shield from the plaintiff.
The jury could have found Dr. Weber not liable, having fully informed plaintiff of the dangers known to him, yet still have found Robins liable for fraudulent misrepresentation and/or concealment.
Instruction No. 9 provides:
“The laws of Kansas provide that an advertisement of a device shall be deemed to be false if it is false or misleading in any particular.
“Advertisement means all representations disseminated in any manner or by any means other than labeling, for the purpose of inducing, or which are likely to induce, directly or indirectly, the purchase of devices.
“In determining whether an advertisement is misleading, you should consider representations made by statement, word, design, device, sound, or in any combinations thereof, but also the extent to which the labeling or advertisement fails to reveal facts material in the light of such representations or materials with respect to consequences which may result from the use of the article to which the advertisement relates under the conditions of use prescribed in the advertisement thereof or under such conditions of use as are customary or usual.
“The violation of the above law may be considered an act of negligence if the misleading or false statements relate to the cause of an injury.”
Instruction No. 10 provides:
“You are instructed that the laws of the State of Kansas provide that the following acts are unlawful and are prohibited:
“1) Manufacture, sale, or delivery or offering for sale any device that is misbranded;
“2) The misbranding of any device;
“3) The dissemination of any false advertisement.
“A device within the meaning of this act includes any instrument, apparatus, or contrivance intended to affect any function of the human body.
“A device is misbranded if its labeling is false or misleading in any particular; or
“If it is dangerous to health when used as recommended or suggested in its labeling.
“Labeling means all labels and other written, printed, or graphic matter upon an article or its containers or accompanying such article.
“The violation of the above law may be considered an act of negligence if the misleading or false statements relate to the cause of an injury.”
Robins attacks these instructions on four grounds: that the Kansas food, drug, and cosmetic act, K.S.A. 65-655 et seq., is preempted by federal law; that the act was not set forth in the pretrial order; that the legislature did not intend the act to apply to this type of case; and that the instructions improperly state the law regarding causation.
Robins cites no authority for its conclusory statement that the Kansas law is “preempted by the Federal Act for the labeling and branding of prescription drugs and devices such as the Daikon Shield.” Nor does Robins provide any argument why preemption exists.
In 1976, Congress added the Medical Device Amendments (21 U.S.C. § 360c et seq. [1982]) to the federal Food, Drug, and Cosmetic Act (21 U.S.C. § 301 et seq. [1982]). The amendments included new section 21 U.S.C. § 360k (1982), which preempts certain state regulations relating to medical devices. However, the 1976 preemption section applies only to provisions of state laws’ which create substantive requirements for devices. The preemption does not apply where the state statute operates only to prohibit false labeling or misbranding a device. 21 C.F.R. § 808.1(c) (6)(ii) (1987) provides that the Medical Device Amendments do not “preempt a State or local requirement prohibiting the manufacture of adulterated or misbranded devices.” Instructions Nos. 9 and 10 are based upon K.S.A. 65-669 and K.S.A. 65-672, which relate to misbranding and false advertising. Neither the instructions nor the statutory sections on which they are based establish independent substantive labeling requirements, other than the prohibition against false or misleading labeling and advertising. There is no preemption.
However, even assuming the federal law preempts present Kansas law, the relevant period for determining Robins’ duty of due care in its labeling and advertising of the Daikon Shield was the period during which Robins labeled, advertised, and sold the Daikon Shield: 1970 - 1974. Recause the Medical Device Amendments were not passed until 1976, there could be no preemption during the relevant time period.
Robins’ second argument is that these statutory standards of care were not identified in the pretrial order. This is not supported by the record. The pretrial -order stated:
“PLAINTIFF’S CONTENTIONS
“1. Plaintiff claims the defendant Robins was negligent in one or more of the following respects:
“(1) Promoting and selling a misbranded medical device for profit contrary to state and federal law;
“(m) Using false and misleading advertising and labeling to promote Daikon Shield sales for profit, contrary to law.”
During this time, only the Kansas food, drug, and cosmetic law applied to Robins’ actions. Robins’ argument is without merit— the only possible state laws upon which these plaintiff claims could be based are those used as a basis for instructions Nos. 9 and 10: K.S.A. 65-669 and K.S.A. 65-672. The statutes were adequately identified in the pretrial order.
In any event, the trial court had the power to amend the pretrial order to prevent manifest injustice. K.S.A. 1986 Supp. 60-216; Black v. Don Schmid Motor, Inc., 232 Kan. 458, 657 P.2d 517 (1983). There is no surprise in this case. The plaintiffs requested jury instructions, which expressly cite to the provi sions of the state food, drug, and cosmetic law as a statutory basis for Robins’ duty of due care, were filed with the court (and hand delivered to counsel for Robins) 44 days prior to the date the trial court began consideration of requested instructions. There was no surprise. As in Black, the appellant knew the other party was relying on this theory and the only possible prejudice was the unfavorable jury verdict.
Robins’ third argument appears to be that the Kansas act was designed to protect only the consuming public and that, since the Daikon Shield was an ethical device available only by prescription, the plaintiff was not within the class protected by the statute. The argument has no merit. We have held that K.S.A. 65-655 et seq. is designed to “protect the consuming public from fraud and deception.” Coffee-Rich, Inc. v. Kansas State Board of Health, 192 Kan. 431, Syl. ¶ 1, 388 P.2d 582 (1964). Plaintiff is a member of the consuming public who has been severely, permanently injured by the fraud, deceit, or negligence of Robins. Robins argues that K.S.A. 65-669(n) removes its statutory duty of care. That statute provides:
“A drug or device shall be deemed to be misbranded:
“(n) In the case of any prescription drug distributed or offered for sale in this state, unless the manufacturer, packer, or distributor thereof includes in all advertisements and other descriptive printed matter issued or caused to be issued by the manufacturer, packer, or distributor with respect to that drug a true statement of (1) the established name, as defined in subsection (e)(2) of this section, (2) the formula showing quantitatively each ingredient of such drug to the extent required for labels under 21 U.S.C. 352(e), and (3) such other information in brief summary relating to side effects, contraindications, and effectiveness as shall be required in regulations issued under the federal act.”
Even if Robins’ argument were true, it relieved it only of the misbranding requirements of K.S.A. 65-669, not the false advertising requirements of 65-672. In addition, the exception in K.S.A. 65-669(n) applies, by its express term, only to “prescription drugs.” (Emphasis added.) Under Kansas law, the Daikon Shield is a “device” — not a “drug.” K.S.A. 65-656 provides statutory definitions of the terms used in the food, drug, and cosmetic act:
“The term ‘device’ . . . means instruments, apparatus and contrivances, including their components, parts and accessories, intended (1) for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; or (2) to affect the structure or any function of the body of man or other animals.” K.S.A. 65-656(e).
The definition of the term “drug” expressly “does not include devices or their components, parts or accessories.” K.S.A. 65-656(d).
The mislabeling provisions (K.S.A. 65-669) of the act clearly express the intent that no specific exemption exists for prescription devices. K.S.A. 65-669(a) provides: “A drug or device shall be deemed misbranded: (a) If its labeling is false or misleading in any particular.” (Emphasis added.) The statute directly recognizes that mislabeling may occur for both drugs or devices, but provides a limited exemption in subsection (n) for prescription drugs only. Robins’ argument is without merit.
Finally, Robins attacks the instructions because they state that the violation of the state law must “relate to the cause of an injury,” rather than stating that the violation must cause the injury.
Instructions must be read as a whole. Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, 614, 549 P.2d 1354 (1976). Instructions Nos. 9 and 10 are not erroneous when viewed together with the other instructions to the jury. Instructions Nos. 9 and 10, by their express terms, permitted the jury to find only negligence, they did not independently permit the jury to find liability. Other provisions in the instructions fully satisfy the requirements of causation. Instruction No. 31 expressly requires that, before the jury could find fault for negligence, it must have found that negligence caused the injury complained of. Read in their entirety, the instructions are not erroneous.
We also note that, in Palmer v. A.H. Robins Co., Inc., 684 P.2d 187 (Colo. 1984), Robins made essentially the same arguments regarding the Colorado drug mislabeling statute, which appears to be very similar to the Kansas statute. The Colorado court was no more impressed than are we with Robins’ argument.
Next, Robins objects to several of the trial court’s instructions relating to the manufacturer’s duty to warn. The first, instruction No. 7, provides:
“It is the duty of the manufacturer of a device such as the Daikon Shield to continuously monitor the use of its product by the consuming public and to gather information relative to its safety by all reasonable means, including adverse reaction reports, scientific literature and other sources available to it.
“The duty of the manufacturer requires that it give reasonable and adequate warnings concerning any defects or risks associated with the use of the device which come to its knowledge or which, in the exercise of ordinary care, should have come to its knowledge.
“The fact that there is a difference of opinion among authorities as to the existence of or the seriousness of a risk does not by itself entitle the company to ignore or discount the risk if to do so would be unreasonable. The fact that no warning was required by a regulatory agency or was being given by manufacturers of similar products does not exonerate the defendant A.H. Robins Company if the product was defective and they knew or should have known of the defect.
“As previously stated in this instruction, the nature and extent of the warnings or other actions required of the company in the light of the hazards and risks associated with its product must be commensurate with the dangers and risks involved. Whether or not a warning to the medical community alone or other action or warnings were required is for the jury to determine. In this connection, evidence that the company sent out ‘Dear Doctor’ letters in 1974 and in 1980 may not be considered by the jury as evidence of the company’s duty to send out such warnings unless you find that the knowledge and experience existed prior to those dates which would have required the company to issue such warnings earlier. The same is true of the company’s ‘recall’ campaign in the fall of 1984. It may not be considered as evidence of the company’s duty to recall the product at any time unless you further find that the literature, the adverse reaction reports and other sources of information available to the company would have required that action be taken earlier.
“The knowledge, actual or constructive, with which the company is charged in this case is that existing between September 14, 1971, and March 17, 1980.”
Robins suggests that this instruction created a duty to warn the general public of the dangers of the product, instead of limiting Robins’ duty to warn the members of the medical profession only.
It is undisputed that Robins made no warnings to either doctors or women using the Daikon Shield. If the jury found that a warning was necessary under the circumstances, it could have only found for the plaintiff, since Robins had failed to warn anyone of the dangers of PID created by the wicking characteristics of the Daikon Shield string.
In Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 409, 681 P.2d 1038 (1984), this court rejected an argument similar to Robins’ present argument. Wooderson held that a manufacturer of ethical drugs has a duty to continuously monitor its product and to warn the medical profession of any known dan gerous side effects. The court did not reach the question of whether there existed a duty to warn persons outside the medical profession because Ortho had warned neither the medical profession nor the general public. 235 Kan. at 409. Thus, “Ortho’s failure to warn the physician is sufficient to sustain the finding of negligence or breach of duty against it in this case.” 235 Kan. at 409. Robins’ argument fails because it made no warnings to anyone of the dangers of the Daikon Shield.
Robins next takes exception to instruction No. 8, which provides:
“You are instructed that the manufacturer of an intrauterine contraceptive device to be used in human beings is held to the standard and skill of an expert in that particular field and to an expert’s knowledge in the design, testing, manufacture, promotion, and sale. It is also held to the standard and skill of an expert concerning the scientific literature and other available means of communication concerning the device.”
Robins argues that the instruction allowed the jury to hold Robins responsible for knowledge acquired after the date of plaintiff s injuries (March 17, 1980). Again, instructions must be read as a whole. Van Hoozer v. Farmers Insurance Exchange, 219 Kan. at 614. Instruction No. 7 states: “The knowledge, actual or constructive, with which the company is charged in this case is that existing between September 14, 1971, and March 17, 1980.” There is no error.
Instruction No. 13 provides:
“As you have been previously instructed, a product may be defective where not accompanied by adequate warnings concerning risks and dangers associated with its use. Whether or not a warning accompanying a device is adequate depends upon a number of factors. In this case, since the device could only be obtained through a physician, the warning must be of such a nature as to be comprehensible to the average physician using it and to convey a fair indication of the nature and extent of the danger to the mind of the physician using it. As you have been elsewhere instructed with respect to the duty of the manufacturer to take all reasonable steps necessary to warn of dangers and risks which become known to him after the product is placed on the market, the duty to update literature accompanying the device is also a continuing one, and the sources of information to which the company must look in determining whether or not to amend or modify its labeling are the same sources, that is, adverse reaction reports, the scientific literature and any other sources available to it.”
Robins’, argument is that the trial court erred by failing to instruct the jury that it was unnecessary for Robins to warn Loretta Tetuan’s physicians if they were already aware of the risks of the Daikon Shield. Again, the record does not support Robins’ contention that either Dr. Pfuetze or Dr. Weber had such knowledge concerning the Daikon Shield.
The testimony of both physicians was that they were not aware of the full dangers of the Daikon Shield. They further testified that, if they had been fully informed, they either would have immediately removed the device or would have never inserted it in the first place. Robins’ consistent policy of concealing (or attempting to destroy) information on the true dangers of the Shield, of trying to “neutralize” critics of the Shield, and of funding only “favorable” studies ensured that the information available to Dr. Pfuetze and Dr. Weber was inadequate to break the chain of causation between Robins’ failure to warn and Loretta Tetuan’s injuries. There is no error as to instruction No. 13.
Robins next complains of several instances of alleged misconduct by opposing counsel. In Kleibrink v. Missouri-Kansas-Texas Railroad Co., 224 Kan. 437, 443, 581 P.2d 372 (1978), this court stated:
“Remarks of counsel are reversible error when, because of them, the parties have not had a fair trial. [Citation omitted.] Of course, the trial court is in a better position than an appellate court to determine whether the verdict resulted from asserted misconduct of counsel or from passion and prejudice, and ordinarily its conclusion in the matter will not be disturbed.”
An example of misconduct by counsel which prevents the parties from having a fair trial may be found in Smith v. Blakey, Administrator, 213 Kan. 91, 515 P.2d 1062 (1973), and the court concluded that the misconduct was not an isolated instance of impropriety:
“It is apparent in this case that plaintiffs counsel’s trial strategy was to try defendant’s counsel rather than the issues. His efforts were not of an isolated nature but, to the contrary, permeated the whole of the trial from opening statement to final argument.” 213 Kan. at 96.
Where the alleged misconduct is isolated and is insufficient to result in substantial prejudice or prevent a fair trial, the trial court’s verdict will not be overturned. In State Farm Fire & Cas. Co. v. Liggett, 236 Kan. 120, 125, 689 P.2d 1187 (1984), this court found that the remark by counsel
“had no relevance and was improper; but it was clearly a minor incident, insufficient to result in substantial prejudice, and any error was cured by the prompt ruling of the trial court. The case was ably tried, argued and presented to the jury by competent and aggressive counsel. Viewing these remarks from the perspective of the entire six-week trial, they were insignificant and did not prevent the appellant from having a fair trial.”
In the present case, Robins has culled from a nine-week trial, with a record of over 6,000 transcript pages, 24 instances of alleged “impropriety.” After reviewing these instances of “misconduct,” we conclude that the conduct does not approach that which was condemned by this court in Smith. A review of the “litany of alleged misconduct” in this case reveals that Robins was not denied a fair trial.
In only two instances was plaintiff s counsel’s action in any sense improper or misconduct, as opposed to simply asking questions objectionable on an evidentiary basis. Indeed, in an overwhelming proportion of Robins’ “litany,” counsel for plaintiff was entirely within his rights, asking questions about or commenting on evidence that had already been independently admitted or would be subsequently admitted.
The first instance was in impeaching Robins’ lead witness on the basis of a National Public Radio broadcast by the witness, in which the extent of the Daikon Shield litigation was revealed, and the second in counsel’s comment in closing argument that “thousands” of injuries might have been averted but for Robins’ fraudulent concealment. In the former instance, Robins’ counsel objected, the objection was sustained, and the trial court carefully instructed the jury to disregard the question. The reference appears from the record to have been entirely inadvertent. The NPR broadcast transcript, from which counsel for plaintiff was reading in order to impeach a witness who had spoken on the broadcast, mentions the extent of the Daikon Shield litigation. The record does not indicate that counsel was deliberately seeking to introduce invalid evidence.
In the latter instance, while the statement was not inadvertent, it was made in passing during the course of a four-hour oral argument. No objection was made. The trial court instructed the jury that argument by counsel is not evidence, and should be disregarded to the extent it is not supported by the evidence. We cannot find that these two comments, in the course of a nine-week trial in which an immense amount of information was collected and given to the jury, so prejudiced Robins that it did not receive a fair trial.
In determining whether improper actions by counsel amount to reversible error, Kansas courts have given great weight to the presence or absence of an objection and the curative effect of a well-phrased admonition to the jury. Masson v. Kansas City Power and Light Co., 7 Kan. App. 2d 344, 350, 642 P.2d 113, rev. denied 231 Kan. 801 (1982). It is only in the extreme case that a lawyer’s misconduct cannot be cured by instructing the jury to disregard it. In Merando v. A.T. & S.F. Rly. Co., 232 Kan. 404, 418, 656 P.2d 154 (1982), we found that allegations of misconduct during a lengthy trial “were cured by prompt rulings of the trial court or they were insufficient to result in substantial prejudice.” In Kelty v. Best Cabs, Inc., 206 Kan. 654, 656, 481 P.2d 980 (1971), we held that, where mention of insurance was inadvertent, its admission may be cured by instruction of the jury to disregard. In a products liability action in Cantrell v. R.D. Werner Co., 226 Kan. 681, 602 P.2d 1326 (1979), the defendant drug manufacturer argued on appeal that plaintiff s counsel had intentionally prejudiced the trial, asserting six different areas of alleged misconduct. We reviewed the allegations and found all to be without merit. 226 Kan. at 683. The same conclusion is warranted here. This was a long and difficult trial; the record indicates that the trial court should be commended for its handling of the case.
The jury awarded plaintiff compensatory damages in the amount of $1.7 million, and punitive damages in the amount of $7.5 million. Robins attacks these awards on four grounds: that the compensatory and punitive damage awards are excessive, that the trial court erred by refusing to remit the punitive damage award, that further awards of punitive damages against Robins would be contrary to the public interest, and that the punitive damage award unconstitutionally punishes Robins.
A. Compensatory Damages
Robins bases its argument that the compensatory damages awarded are excessive by comparing the $1.7 million award in the present case to other awards. Robins then concludes without substantial analysis that the award could be only a product of “the passion and prejudice” of the trial court jury.
Where a charge of excessive verdict is based on passion or prejudice of the jury but is supported solely by the size of the verdict, the trial court will not be reversed for not ordering a new trial, and no remittitur will be awarded unless the amount of the verdict in light of the evidence shocks the conscience of the appellate court. Cantrell v. R.D. Werner Co., 226 Kan. at 686. Where the alleged passion or prejudice of the jury is not shown by definite proof, but depends for support solely on the size of the verdict, the award will be upheld unless it shocks the conscience of the court. Henderson v. Hassur, 225 Kan. 678, 594 P.2d 650 (1979). There is no simple, symmetrical pattern or design for determining whether a verdict is sufficient or insufficient, since each case must stand on its own facts. McGuire v. Sifers, 235 Kan. 368, 681 P.2d 1025 (1984).
Robins emphasizes that Loretta Tetuan incurred only $6,000 in medical expenses, that she now earns more than she did prior to her injury, and that her second child had Down’s syndrome. Prior to her injury, plaintiff earned $3.75 per hour. At the time of trial, she was employed by the American Bindery Company in Topeka, Kansas, and earned $4.15 per hour.
It is true that one of plaintiff s children has Down’s syndrome. It is equally true that the other does not. In any case, the issue is whether plaintiff and her husband planned on having additional children; the uncontradicted testimony of plaintiff was that they did. Robins fails to mention other uncontradicted trial testimony. The surgical measures necessary to save plaintiffs life have created permanent psychological scars and directly caused the disintegration of her otherwise successful marriage. For the rest of her life she will have to take powerful, and occasionally dangerous, synthetic hormones, not by choice but due to the acts or failure to act by Robins.
In Cleveland v. Wong, 237 Kan. 410, 701 P.2d 1301 (1985), we held that a jury verdict of slightly over $1 million, which included the wife’s loss of consortium, was not excessive where the defendant had caused the husband to be impotent and incontinent. In so holding we stated:
“In the case now before us, the injury sustained by the plaintiff is substantial, severe, and permanent. The causal negligence of the defendant is clearly established. The effect upon the plaintiff and his wife has been and will continue to be severe. The verdict, though substantial, does not shock the conscience of this court.” 237 Kan. at 426.
Plaintiff s injuries are substantial, severe, and permanent. At the age of 28, she was permanently surgically castrated, with all the psychological damage that entails. Her marriage was destroyed. The compensatory damages awarded do not shock the conscience of the court, and are supported by the evidence.
B. Punitive Damages
Robins alleges that the punitive damages awarded were excessive and advances two arguments: first, that the size of the verdict “even viewed in isolation” shocks the conscience, and second, that the trial court erred by excluding “good guy” evidence relevant to punitive damages.
It is difficult, if not impossible, to lay down precise rules of law to determine whether an award of punitive damages is excessive. In Henderson v. Hassur, 225 Kan. at 694, we stated:
“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. Any mitigating circumstances which may bear upon any of the above factors may be considered to reduce such damages. Will v. Hughes, 172 Kan. 45, 55, 238 P.2d 478 (1951). In fixing an award of punitive damages a jury may consider the amount of actual damages recovered, defendant’s financial condition and the probable litigation expenses. Ayers v. Christiansen, 222 Kan. 225, 229, 564 P.2d 458 (1977).”
Punitive damages may be awarded whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy. Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, Syl. ¶ 16. Punitive damages are awarded to punish the wrongdoer for his malicious, vindictive, or willful and wanton invasion of another’s rights, with the ultimate purpose being to “restrain and deter others from the commission of like wrongs.” 235 Kan. 387, Syl. ¶ 17. “Punitive damages . . . remain as the most effective remedy of consumer protection against defectively designed mass produced articles. They provide a motive for private individuals to enforce rules of law and enable them to recoup the expense of doing so.” Grimshaw v. Ford Motor Co., 119 Cal. App. 3d 757, 810, 174 Cal. Rptr. 348 (1981). An award of punitive damages “must be viewed in light of the actual damages sustained, the actual damage award, the circumstances of the case, the evidence presented, the relative positions of the plaintiff and the defendant, and the defendant’s financial worth.” Wooderson, 235 Kan. at 420.
Kansas courts have considered the issue of excessive punitive damages in a number of cases. In U.S.D. No. 490 v. Celotex Corp., 6 Kan. App. 2d 346, 629 P.2d 196 (1981), the Court of Appeals upheld an award of $100,000 compensatory and $600,000 punitive damages against a nationwide seller of roofing systems that had fraudulently concealed defects in its products.
This court, in Wooderson, 235 Kan. at 420, upheld punitive damages of $2.75 million, compared with compensatory damages of $2 million, as not excessive. (1.38 to 1 ratio.) A punitive damage award of $1 million was upheld in Plains Resources, Inc. v. Gable, 235 Kan. 580, 682 P.2d 653 (1984), where compensatory damages totaled $282,569.05. (3.54 to 1.) See also Iola State Bank v. Bolan, 235 Kan. 175, 679 P.2d 720 (1984) (upholding $150,000 punitive damages award compared to $26,663.14 actual damages — 5.6 to 1 ratio); Binyon v. Nesseth, 231 Kan. 381, 646 P.2d 1043 (1982) (upholding punitive damage award of $100,000 compared to $9,326.06 actual damages — 10.7 to 1); Henderson v. Hassur, 225 Kan. 678 (upholding punitive damage award of $215,000 compared to $48,000 actual damages — 4.48 to 1). In Sampson v. Hunt, 233 Kan. 572, 665 P.2d 743 (1983), this court upheld a punitive damage award of $600,000 in a malicious prosecution action where $20,000 actual damages had been awarded. The court stated:
“The award of punitive damages here is 30 times the award of actual damages. The jury verdict shows they found the appellants guilty of maliciously prosecuting these claims against the plaintiff. The jury had before it and was entitled to consider the attending circumstances, the nature of the acts and the intent of the defendants, as well as any mitigating circumstances and Hunt’s financial condition. Sampson testified he believed it would take at least a million dollars to stop Hunt’s course of litigation against him. The jury obviously believed a large sum was necessary for that purpose. This amount is supported by the evidence. The trial court did not err in refusing to order a remittitur.” 233 Kan. at 588.
Robins stresses that no Kansas appellate court has ever upheld a punitive damage award of this magnitude. Neither has any been presented with corporate misconduct of such gravity and duration. We note that, in Palmer v. A.H. Robins Co., Inc., 684 P.2d 187 (Colo. 1984), the Colorado Supreme Court upheld an award of punitive damages of $6.2 million for fraud under a Colorado statute requiring proof of punitive damages to be beyond a reasonable doubt. The Palmer award occurred prior to the revelation of Robins’ 1975 document destruction program.
In Wooderson this court upheld a punitive damage award of $2.75 million as not excessive, having found that there was sufficient evidence for the jury’s conclusion that Ortho had been grossly negligent or recklessly indifferent to the rights of others in failing to warn of the dangers of its product. In the present case, the jury made a specific finding of fraud. A review of the record indicates that there was substantial evidence tending to show Robins knew the Daikon Shield was not safe or effective; that Robins knew of the wicking nature of the tail string; that Robins knew of a high rate of PID and septic abortion associated with the Daikon Shield; that Robins misled doctors through claims of safety and efficacy while it knew there was no basis for a claim of safety, and all responsible tests for the Daikon Shield’s effectiveness showed a much higher pregnancy rate than Dr. Davis’ “1.1%” figure; that Robins similarly misled consumers through a misleading lay promotional campaign; that Robins never publicly retracted its claims of “effectiveness” even though it had privately acknowledged the 1.1% rate as invalid; and that Robins knew there were serious problems with its open-ended nylon multifilament string in maintaining its integrity within the body. But not only was there substantial evidence to conclude that Robins fully comprehended, by 1974 at the latest, the enormity of the dangers it had created, but that it deliberately and intentionally concealed those dangers; that it put money into “favorable” studies; that it tried to neutralize any critics of the Daikon Shield; that Robins was motivated by a desire to avoid litigation judgments rather than a concern for the safety of the users of the Daikon Shield; that it consistently denied the dangers of the Daikon Shield for nearly fifteen years after its original marketing of the Daikon Shield; that it commis sioned studies on the Daikon Shield which it dropped or concealed when the results were unfavorable; and, ultimately, that it consigned hundreds of documents to the furnace rather than inform women that the Daikon Shield carried inside their bodies was a bacterial time bomb which could cause septic abortions, PID, and even death.
As to Robins’ financial condition, it was established that, in 1970, A.H. Robins Co., Inc., reported net sales of $132.5 million. By 1983, net sales had increased over 400% to $563.5 million. Earnings before taxes in 1983 amounted to more than $91 million and, after tax, net earnings were over $58 million. In 1979, one of Robins’ subsidiaries, Miller Morton, received a settlement of $42.5 million in an antitrust suit, which amount was to be paid over a five-year period. Robins’ outstanding stock amounted to 25,426,000 shares as of March 1984. The company’s stock was being publicly traded on April 1, 1985, for $23.00 per share, indicating the investor-perceived value of Robins to be in the vicinity of $584,798,000.00.
Far from simply being “grossly negligent” in marketing the Daikon Shield, there was substantial evidence to conclude that Robins deliberately, intentionally, and actively concealed the dangers of the Shield for year after year until those dangers worked their tragic results on Loretta Tetuan. We find that the punitive damages award is not excessive nor does it shock the collective conscience of this court.
Robins suggests that the trial court improperly excluded evidence relevant to punitive damages, specifically, “good guy” evidence showing that Robins had sponsored “orphan drugs” and performed other philanthropic activities. Robins suggests that these were relevant to the issue of its intent.
The evidence was not relevant and was properly excluded. This court announced the standard of relevancy in Henderson v. Hassur:
“In assessing the 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. Any mitigating circumstances which bear upon any of the above factors may be considered to reduce such damages.” (Emphasis added.) 225 Kan. at 694.
A person who is ordinarily a philanthropist and humanitarian does not receive thereby a license to commit intentional wrongs on his days off. Robins was perfectly free to introduce evidence relevant to its knowledge of the Daikon Shield’s dangers or its intent in failing to warn of these dangers, and Robins did so. The jury chose not to believe Robins’ evidence. Robins’ actions in areas of endeavor wholly separate from the Daikon Shield were not relevant to the course of action which was the subject matter of this case. In Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 420-21, 681 P.2d 1038 (1984), we upheld exclusion of evidence of the beneficial effects of oral contraceptives as not proper “mitigating circumstances.”
Robins argues that the punitive damages award should have been remitted because of the extent of Daikon Shield litigation it faces. Robins introduced no evidence of this possibility of exposure to other punitive damages claims at trial for, as Robins states in its brief, “obvious reasons.”
The defendant’s exposure to other punitive damage claims is a relevant circumstance which may be introduced at trial. Restatement (Second) of Torts § 908, Comment e (1977). Robins recognized this potential defense at trial, but chose not to utilize it. In U.S.D. No. 490 v. Celotex Corp., 6 Kan. App. 2d 346, defendant Celotex argued that its potential liability for punitive damages in similar cases should be considered in reducing the present punitive damages award:
“As USD 490 points out in its brief, Celotex had available numerous witnesses who for the purpose of mitigating the punitive damages here might have testified about the cases going on across the country with similar claims of punitive damages. Celotex, however, for tactical reasons, chose not to present such evidence to the jury.” 6 Kan. App. 2d at 355.
As in Celotex, the defendant here made a calculated tactical decision to attempt to avoid any liability, rather than trying to mitigate its punitive damages. Robins made a similar argument before the Colorado Supreme Court in Palmer, but again did not present any evidence at trial on the likelihood of other punitive damages. We concur with the Colorado Supreme Court, which rejected the argument as speculative. 684 P.2d at 215-16.
Robins next argues that additional awards of punitive damages are contrary to the public interest. Robins relies upon Judge Friendly’s dicta in Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (2d Cir. 1967). In Roginsky, the Second Circuit reversed a $100,000 punitive damages award, holding that the evidence was insufficient to justify the award. In acknowledged dicta, Judge Friendly stated his concerns regarding punitive damages in products liability situations:
“The legal difficulties engendered by claims for punitive damages on the part of hundreds of plaintiffs are staggering. If all recovered punitive damages in the amount here awarded these would run into tens of millions, as contrasted with the maximum criminal penalty of‘imprisonment for not more than three years, or a fine of not more that $10,000, or both such imprisonment and fine’, 21 U.S.C. § 333(b), for each violation of the Food, Drug and Cosmetic Act with intent to defraud or mislead. We have the gravest difficulty in perceiving how claims for punitive damages in such a multiplicity of actions throughout the nation can be so administered as to avoid overkill.” 378 F.2d at 839.
In Celotex, the defendant made substantially the same argument Robins now makes. The Court of Appeals stated:
“While Roginsky certainly provides some support for Celotex’s position, it is by no means dispositive of the issue. Alternative solutions exist that allow punitive damages to be awarded in a products liability situation without running into the problems that were anticipated in Roginsky. See Owen, Punitive Damages in Products Liability Litigation, 74 Mich. L. Rev. 1258 (1976).” 6 Kan. App. 2d at 355.
However, as the Court of Appeals found, Celotex had precluded the ability of the trial court to consider other punitive damage litigation by its tactical decision to exclude all references to other such litigation. The Colorado Supreme Court, in Palmer, rejected Robins’ argument:
“Robins’ due process arguments are several. It initially asserts that the potential for multiple punitive awards involving the same product clashes with the concept of fundamental fairness. If this argument were followed to its logical conclusion, however, it would mean that ‘punitive damages could never be assessed against a manufacturer of a mass produced article.’ Grimshaw v. Ford Motor Co., 119 Cal. App. 3d 757, 812, 174 Cal. Rptr. 348, 383 (1981). The need for punitive damages is just as real as the danger of multiple awards. Wangen v. Ford Motor Co., 97 Wis. 2d 260, 294 N.W.2d 437 (1980); Owen, Punitive Damages in Products Liability Litigation, 74 Mich. L. Rev. 1257, 1325 (1976).” 684 P.2d at 215.
The Palmer court also noted that the dangers of excessive punitive awards could be avoided:
“While the propriety of punitive damages must be decided on a case-by-case basis, there are safeguards available to a trial court faced with a defendant’s claim that, due to past punitive awards arising out of the same course of conduct, it will face economic disaster from a substantial punitive damages verdict in the case at issue. When an adequate showing is made by the defendant, the court might consider granting a bifurcated trial on the issue of punitive damages in order to avoid any prejudice to the defendant on the issue of liability. [Citation omitted.] The jury under such circumstances could consider at the second phase of the trial the amount of any unsatisfied or satisfied past punitive awards as well as the past and present financial condition of the defendant. Another safeguard, closely related to a bifurcated proceeding, is to instruct the jury, when so requested by the defendant, that it may properly consider the amount of past punitive verdicts imposed on the defendant as a result of its marketing conduct. [Citation omitted.] Finally, close judicial scrutiny of a punitive damages verdict, against the backdrop of the particular circumstances of the case, is another means of assuring that the award is proportionate to the defendant’s wrongdoing, is commensurate with the defendant’s financial ability to pay, and actually serves the purposes of punishment and deterrence. [Citations omitted.]” 684 P.2d at 215-16.
However, Robins’ failure to provide at trial any evidence on its probable punitive liability exposure frustrated any of these mechanisms.
This court discussed the issue in McDermott v. Kansas Public Service Co., 238 Kan. 462, 712 P.2d 1199 (1986), stating:
“The Roginsky court was concerned that an award of punitive damages in a large number of those cases would be staggering. The Roginsky court disallowed the award of punitive damages, however, not because of the multiplicity of punitive claims but because the evidence presented on trial was not sufficient to allow the issue to go to the jury. In a later Oregon case, State ex rel. Young v. Crookham, 290 Or. 61, 618 P.2d 1268 (1980), the court discussed Roginsky and said:
“ ‘Hindsight demonstrates that the apprehension of the Roginsky court was heavily exaggerated. Of the 1,500 cases, in only 3 did juries award punitive damages. The vast majority of cases were settled and the financial destruction feared by the Second Circuit did not come to pass.’ 290 Or. at 66.
“In State ex rel. Young v. Crookham, the Oregon Supreme Court faced the issue of whether Oregon should adopt the ‘one bite’ or ‘first comer’ theory, so that the award of punitive damages to the first plaintiff would preclude the recovery of punitive damages for all subsequent plaintiffs. In a lucid and well-reasoned opinion, Oregon rejected the ‘one bite’ theory, concluding that such a rule would threaten to reduce civil justice to a race to the courthouse steps, would provide a windfall to the first plaintiff, and would not be fair. The court points out possible alternatives such as class actions, remittitur, total elimination of punitive damages in mass litigation, and jury consideration of earlier and possible future punitive awards in each case. We have found no case holding that a plaintiff is prohibited from recovering punitive damages from a defendant merely because a previous plaintiff has recovered punitive damages from the same defendant based on the same conduct.” 238 Kan. at 465.
While we have been cited to no cases that have adopted Judge Friendly’s Roginsky dicta, several courts have considered and rejected it. In Moran v. Johns-Manville Sales Corp., 691 F.2d 811 (6th Cir. 1982), the Sixth Circuit expressly rejected Judge Friendly’s views:
“We are not dissuaded from allowing punitive damages because this cost will ultimately be borne by ‘innocent’ shareholders. Punitive damage awards are a risk that accompanies investment. . . . Investors may typically place their money where they choose and withdraw it when they wish. The prospect of ultimate liability for punitive damages may encourage investors to entrust their capital to the most responsible concerns.” 691 F.2d at 817.
The court found the defendant’s requests for protection from punitive damages were more properly addressed to the state legislatures or Congress than to the courts.
In Froud v. Celotex Corporation, 107 Ill. App. 3d 654, 658, 437 N.E.2d 910 (1982), the court stated:
“We note, however, that defendants’ brief contains a broad-based attack on the propriety of punitive damage awards in the context of mass tort litigation, such as the large number of asbestos cases which have been filed across the nation. It is feared that, in such mass tort cases, the possibility that each plaintiff could separately recover a substantial award of punitive damages might bankrupt even the richest defendants. The defendants therefore argue that public policy should prohibit punitive damages in mass tort cases. But we do not believe that defendants should be relieved of liability for punitive damages merely because, through outrageous misconduct, they may have managed to seriously injure a large number of persons. Such a rule would encourage wrongdoers to continue their misconduct because, if they kept it up long enough to injure a large number of people, they could escape all liability for punitive damages.”
In Neal v. Carey Canadian Mines, Ltd., 548 F. Supp. 357, 376-77 (E.D. Pa. 1982), the court also rejected a manufacturer’s argument based upon the concerns expressed in the Roginsky dicta:
“Moreover, there is no legal or equitable basis to allow punitive damage awards to the first plaintiffs in multiple product liability litigation but then to deny such a right to recovery to future plaintiffs. Each tort committed by the defendant is individual and peculiar to that particular plaintiff who has brought suit. Punitive damages are a recoverable item of relief so long as the conduct exhibited by the defendant with respect to that individual plaintiff can be termed as ‘outrageous’ and a reckless indifference to the rights of that plaintiff.”
Before considering whether the concerns expressed in Roginsky should be available to Robins as a defense, we must determine whether Robins has provided this court with ade quate proof that the punitive damages it faces are, in fact, likely to destroy the company.
The affidavits provided to the trial court by Robins indicated that Robins has incurred eleven punitive damage awards in its fifteen years’ experience with the Daikon Shield prior to the filing of its Chapter 11 bankruptcy petition. The largest award is the present award of $7,500,000.00. The smallest punitive damage award was a 1985 judgment for $5.00. Not including the present award, Robins has incurred punitive damage judgments of $17,327,005.00. Robins has paid only $11 million in satisfaction, however, and plaintiff strongly argues that much of this figure represents interest on unsatisfied judgments.
The figures Robins provides in its affidavits are woefully inadequate to determine Robins’ true potential for future punitive damage exposure. If the figures are correct, 12,512 Daikon Shield cases have arisen, of which 7,727 (or 61%) have been settled (7,704) or have had judgment for the plaintiff (23). 4,785 claims remain outstanding. Robins provides no information on the likelihood of future claims. Robins provides no information on previous claims which it successfully defended. It is impossible on this limited basis to determine the total outstanding liability exposure of Robins.
Robins’ affidavits state the company has paid out a total of $368 million in Daikon Shield claims. Of this amount, $357 million appears to have been for compensatory damages. How much of this amount was covered by Robins’ liability insurance is not stated.
Is Robins insolvent? The information before this court does not give a satisfactory answer. It is important to note that the Chapter 11 petition Robins has filed is a voluntary action and contains no insolvency requirement. In re Johns-Manville Corp., 36 Bankr. 727, 732 (Bankr. S.D.N.Y. 1984). Indeed, there is serious doubt whether Robins is in the imminent financial peril it now claims. A recent analysis (Note, Strategic Bankruptcies: Class Actions, Classification & the Dalkon Shield Cases, 7 Cardozo L. Rev., 817, 827 [1986]), concludes that Robins’ main motivation in filing the Chapter 11 petition was to create a “de facto” class action by forcing claimants to proceed through the Eastern District of Virginia Bankruptcy Court and indicates the filing was essentially a response to the federal court decision to decertify a nationwide class action on punitive damages. In re Northern Dist. of Cal., Dalkon Shield, Etc., 693 F.2d 847 (9th Cir. 1982); In re Dalkon Shield Punitive Damages Litigation, 613 F. Supp. 1112 (E.D. Va. 1985).
The trial court indicated that Robins’ net sales have increased from $132.5 million in 1970 to $386.4 million in 1979, and to $563.5 million in 1983. Robins’ net worth was $79 million in 1970; in 1983, it was $355 million. There is no evidence in the record as to Robins’ financial status after 1983. The record indicates only that, until 1983 — despite the Daikon Shield litigation — Robins experienced phenomenal growth. Of course, while the case remains under the jurisdiction of the bankruptcy court, Robins’ management continues to operate the corporation, and further proceedings against Robins have been stayed. 11 U.S.C. § 1108 (Supp. III, 1985).
A review of the relatively meager information Robins has put before the court indicates that, of all the claims it has paid on the Daikon Shield, the overwhelming amount, some $357 million, or .97%, has been for compensatory damages. Robins has paid some $11 million (3%) for punitive damages. If Robins does, in fact, become insolvent due to Daikon Shield litigation, it would not be because of punitive damage awards, but because of the overwhelming amount of compensatory claims. The question remains whether Judge Friendly’s Roginsky dicta should protect Robins in this case. We find it should not.
The concerns expressed in Roginsky of multiple punitive damage awards in mass accident or products liability cases may require consideration by this court at some future time. But this is not the “ordinary” products liability case. It is not based upon negligence (gross or ordinary), it is not based upon strict liability, and it is not based upon a breach of warranty — although many elements of those may also be present here. It is based upon the defendant’s deliberate and active fraudulent concealment of the dangers of its product. It is not based upon a “single management sin” such as producing a defective product or negligently designing a product but, rather, it arose out of a continuous corporate policy of misrepresentation and concealment for more than a decade. There may be a case when granting a product manufacturer relief from punitive damages may be wholly appropriate. It is not appropriate in the present case.
Robins advances a number of other arguments against the punitive damages award. It argues that plaintiff s request in closing argument that the jury give a “final judgment” against Robins was an effort by which “the jury was asked to return a verdict which was to provide complete punishment against Robins for all problems claimed to be related to the Daikon Shield.” Robins also stresses that it only netted “approximately $500,000” from the Daikon Shield. Robins’ final general argument is that the punitive damages award cannot “be justified as necessary to deter Robins from action in the future because it stopped selling the Daikon Shield more than 10 years before the Tetuan trial.”
The first argument is simply not persuasive. A plain reading of the record does not indicate that plaintiff s counsel did anything more than request the jury to return punitive damages against Robins in its “final judgment.” The record does not indicate counsel requested the jury to give “complete punishment” of Robins for all its misdeeds.
Robins’ second argument has a questionable factual basis. Plaintiff contends that the $500,000.00 figure was developed solely for litigation purposes and asks how Robins, which sold 4.4 million Daikon Shields in the United States and abroad, costing $.30 per unit to produce and selling for $4.35, could net only $500,000.00. In any case, how much Robins managed to profit by its fraud is not the ceiling of its punitive damage liability. Indeed, if such were the case, punitive damages would have no deterrent effect because the wrongdoers would be compelled to relinquish only their ill-gotten gains and no more. Robins’ profits on the Daikon Shield are relevant, but only to the extent that they affected the net wealth of the company.
Finally, Robins’ suggestion that, since it removed the Daikon Shield from the marketplace in 1974, it should not be subject to punitive damages awards ten years later is truly remarkable. While Robins stopped selling the Daikon Shield in 1974, it did so only under pressure from the FDA; it continued to sell its remaining stock of Daikon Shields overseas after 1974. Most importantly, of course, the punitive damages were awarded in this case not solely because Robins had sold Daikon Shields, but that, even after doing so, it fraudulently concealed the Shield’s defects for years.
Robins’ final argument is that the punitive damages award unconstitutionally punishes Robins, and that the present award will not achieve its purpose of deterrence. Robins relies upon Judge Heaney’s dissent in In re Federal Skywalk Cases, 680 F.2d 1175, 1188 (8th Cir.), cert. denied 459 U.S. 988 (1982) (Heaney, J., dissenting):
“Unlimited multiple punishment for the same act determined in a succession of individual lawsuits and bearing no relation to the defendants’ culpability or the actual injuries suffered by victims, would violate the sense of ‘fundamental fairness’ that is essential to constitutional due process.”
We would point out that Robins is not being punished for a “single act.” It is not being punished for a single instance of negligence or recklessness in designing a skywalk. It is being punished for a series of corporate actions which for more than a decade involved fraudulent misrepresentations and fraudulent concealment.
A similar argument was presented to the Kansas Court of Appeals in U.S.D. No. 490 v. Celotex Corp., 6 Kan. App. 2d 346, 629 P.2d 196 (1981). The court stated:
“Celotex presents the novel argument that the imposition of punitive damages against Celotex, an interstate mass-marketer, violates its constitutional guarantee of due process, its right to protection against double jeopardy, and subjects it to cruel and unusual punishment. The imposition of punitive damage awards, although penal in nature, does not approach the severity of criminal sanctions and does not demand the same safeguards as do criminal prosecutions. See Comment, Criminal Safeguards and the Punitive Damages Defendant, 34 Univ. Chicago L. Rev. 408 (1967).2
“In arguing that successive punitive damage verdicts subject it to cruel and unusual punishment, Celotex relies upon the suggestion in a concurring opinion by United States Supreme Court Justice Frankfurter that the Eighth Amendment could protect against multiple civil penalties. See U.S. ex rel. Marcus v. Hess, 317 U.S. 537, 556, 87 L. Ed. 443, 63 S. Ct. 379 (1943). The United States Supreme Court, however, has recently ruled that the Eighth Amendment is generally limited to challenging conditions of a criminal sentence. See Ingraham v. Wright, 430 U.S. 651, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977). In our opinion, the Eighth Amendment does not apply to the facts before us.” 6 Kan. App. 2d at 355-56.
This court rejected a similar claim in McDermott v. Kansas Public Serv. Co., 238 Kan. at 467. See Palmer v. A.H. Robins Co., Inc., 684 P.2d 187, 214-17 (Colo. 1984).
Robins’.final point is: “Maximum deterrence was achieved long ago,” and cites Judge Kelly’s decision in O’Gilvie v. Intern. Playtex, Inc., 609 F. Supp. 817, 819 (D. Kan. 1985). Robins’ argument, of course, entirely fails to address the fact that the purpose of punitive damages in Kansas is not merely to deter the defendant from future misconduct, but “to restrain and deter others from the commission of like wrongs.” Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, Syl. ¶ 17, 681 P.2d 1038 (1984). In O’Gilvie, in order to obtain a remittitur of a $10 million punitive damages award to $1.35 million, the defendant immediately recalled its product and began a public education campaign about its product’s dangers. Robins’ historical reaction to punitive damage awards has proven to be less than commendable.
The $6.2 million punitive damage award against Robins in Palmer was rendered by the jury on July 30, 1979. Loretta Tetuan first experienced symptoms of PID in late September of that year. It is entirely possible that plaintiff s injuries could have been avoided if the company had reacted to the verdict by immediately moving to recall the product or to at least warn of its dangers. Instead, Robins responded with the same position it had taken for the last decade — that the Daikon Shield was “safe and effective.” Robins issued a statement on July 31, 1979, that the verdict was “an aberration” and that it was confident “this unwarranted verdict will not survive” on appeal.
The first Daikon Shield case to proceed to trial on the merits occurred in Kansas in Deemer v. A.H. Robins Co., Case No. C-26420. On March 1, 1975, the jury awarded punitive damages against Robins in the amount of $75,000. Robins did not recall the product; it did not warn users of the Daikon Shield’s dangers; it did not warn physicians. It certainly did not warn Loretta Tetuan or the physicians who treated her. Instead, it reacted to the modest punitive damages award in Deemer by promptly attempting to destroy all evidence of its knowledge of the Daikon Shield’s dangers, consigning hundreds of documents to the draft furnace. To punish Robins for its conduct and to discourage others from committing like wrongs in the future, the punitive damages award is justified.
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|
The opinion of the court was delivered by
Prager, C. J.:
This is a civil action brought by the plaintiff, Ruth Cooper, against the defendant, Dr. Ben Rubin, and others to enforce an oral contract relating to the sale of real estate. In her petition, plaintiff alleged, in substance, that she had been the owner of certain real estate commonly known as 8940 State Avenue, Kansas City, Kansas, which was a portion of her homestead and located immediately adjacent to her home; that in March 1977, she entered into a contract to sell the real estate to the defendant, Dr. Ben Rubin, upon the express condition that he construct thereon a small medical building of 4,000 square feet so that the peaceful enjoyment of her homestead would not be disturbed.
Plaintiff alleged that thereafter in 1983, Dr. Ben Rubin sold the real estate to the defendants, Warren and Elaine Bennett, who constructed a building somewhat larger than the small medical building promised by Dr. Rubin, for the purpose of operating a real estate business. Plaintiff further alleged that by the construction of the larger building, Dr. Rubin breached the contract that he had entered into with plaintiff, and, further, that the present owners had constructed a building which did not comply with the zoning requirements of the city of Kansas City, Kansas.
The plaintiff sought compensatory damages, punitive damages, and injunctive relief, both preventive and mandatory, restraining the defendants from occupying the building and requiring defendants to tear down portions and reconstruct the same to comply with city building codes and zoning ordinances. As to defendant Rubin, the plaintiff sought recovery of damages for breach of an oral contract.
The case was filed March 27,1984, and was originally assigned to Judge William Mahoney, who twice denied the motion of defendant Rubin for summary judgment. Thereafter, defendant Rubin filed an affidavit of prejudice against Judge Mahoney. The case was subsequently consolidated with a related zoning case, and was assigned to Judge James J. Lysaught, Jr. Because of the illness of Judge Lysaught, the case was then assigned to Judge Lawrence G. Zukel, who granted defendant’s motion for summary judgment based in part on the statute of frauds. Plaintiff filed a timely appeal to the appellate courts.
Plaintiff raises two preliminary issues having to do with the power of Judge Zukel to sustain the defendant’s motion for summary judgment. Plaintiff first contends that reversible error was committed when the administrative judge removed Judge Mahoney from the case, because the statutory procedures governing the removal of judges was not adhered too. We find this point to be without merit. The administrative judge did not remove or disqualify Judge Mahoney in the case. He simply exercised his power to consolidate two cases in Wyandotte District Court and then assigned the cases to Judge Lysaught. Later, when Judge Lysaught became ill, the cases were reassigned to Judge Zukel. At no time was an order filed disqualifying Judge Mahoney from considering the case. The transfer of the case was simply an administrative procedure within the authority of the administrative judge, which is frequently followed where two cases involving the same subject are consolidated in district court.
The plaintiff also maintains that Judge Zukel’s granting of defendant Rubin’s motion for summary judgment was error, because a similar motion for summary judgment had been denied twice by Judge Mahoney. The fact that Judge Mahoney had previously denied the defendant’s motion for summary judgment did not preclude another district judge to whom the case was assigned from sustaining a motion for summary judgment subsequently filed by the defendant. The reason for this rule is that the denial of a motion for summary judgment is an interlocutory order and not a final order, In re Estate of Ziebell, 2 Kan. App. 2d 99, 575 P.2d 574 (1978). It may be reconsidered by the judge later as the facts in the case are developed. We hold that Judge Zukel had jurisdiction to consider and sustain the defendant’s motion for summary judgment, even though a similar motion had been denied by another judge in the same case at an earlier time.
The basic issue presented on the appeal is whether the trial court erred in granting defendant Rubin’s motion for summary judgment based upon the statute of frauds. Plaintiff maintains that legitimate questions of fact existed which precluded summary judgment. In order to determine whether or not there was error, we are required to apply the basic principles applicable in determining when summary judgment may be appropriate. 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. 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. Bowen v. Westerhaus, 224 Kan. 42, 578 P.2d 1102 (1978).
In granting defendant Rubin’s motion for summary judgment in this case, the trial court stated that it believed the facts clearly showed that Cooper’s claim brought against Rubin was barred by the statute of frauds. The trial court did not make any specific findings of fact upon which its opinion was based, but a review of the record and the briefs discloses that the relevant facts in the case are undisputed and are as follows: Prior to February of 1977, plaintiff Cooper, as the owner of 8940 State Avenue in Kansas City, had determined to sell the property and placed the same in the hands of John H. DeLap for sale. According to the affidavit of DeLap, his realty company had signs on the property from August 1975 to July 1976 under a contract with Cooper for the sale of the property. Thereafter, the listing expired and, by February 1977, the property was no longer actively on the market for sale. The DeLap Company was thereafter contacted by Rod Minkin, a real estate agent, on behalf of Dr. Rubin, who wanted to make an offer on the property. DeLap contacted Cooper in February, informed her of the offer, and obtained from Cooper the exclusive right to sell the property to Dr. Rubin only.
The exclusive right to sell agreement is attached as an exhibit to plaintiff s brief. It is dated February 25, 1977, and signed by plaintiff Ruth Cooper and gives to DeLap’s company (Century 21 Geer R.E.) an exclusive right to sell the property from February 18,1977, to March 31,1977. The right to sell agreement states as follows:
“It is understood that the property is offered for sale for the sum of $45,000.00 and on the following terms: CASH. This listing pertains to Ben Rubin Jr. only.”
It is important to note that DeLap is authorized to sell the property to Dr. Rubin only for the sum of $45,000 cash, and there are no other conditions or terms or restrictions listed for the sale.
Thereafter, the two real estate agents representing each of the parties got Cooper and Dr. Rubin together and prepared a real estate contract which was signed by both parties.
The form of the real estate contract is important. The contract is dated March 4, 1977, and is between Ruth W. Cooper, a single woman, as seller, and Ben Rubin, Jr., as buyer. The contract is drawn in the form of an offer made by the seller Cooper which is then accepted by the buyer Rubin. After describing the property to be sold, the contract states that the same is subject to any covenants, restrictions, zoning laws, easements, party wall agreements, special easements, and community contracts of record. The purchase price is $45,000 and the down payment of $4,000 is acknowledged by the seller and has been deposited with the realtor, Century 21, the seller’s real estate agent. The balance to be paid on the sale is $41,000.
The real estate contract contains a number of conditions typed in the printed contract. The pertinent ones are as follows:
(1) The buyers are granted 20 days to obtain a soil test, but not to include the driving of heavy equipment on the property. The buyers are to be responsible for any damages.
(2) Should soil tests not prove adequate, the earnest money is to be refunded.
(3) The buyer shall have 90 days to determine if a change in zoning to E-l may be obtained.
(4) The buyer shall have the right and option to purchase a 25-foot strip of land adjoining the land’s eastern edge for the period of 1 year from the sale date for the sum of $15,000.
(5) The buyer agrees to furnish seller an easement across his property for seller to hook on to sewers.
(6) The buyer shall have first right of refusal should seller decide to sell any or all of her remaining property.
It is noted that there is absolutely nothing contained in the printed contract to restrict the type of building to be constructed thereon by the buyer, Dr. Rubin. This offer of the plaintiff, as seller, was accepted by Dr. Rubin on March 11, 1977. The real estate contract was witnessed by John DeLap representing the seller only.
It is undisputed that an addendum, a rider, and a supplemental agreement to the real estate contract were executed and form a part of the final contract. The addendum to the contract, accepted March 11, 1977, contains the following language:
“Should Buyer be unable to obtain required zoning change or soil tests will not permit Buyer to construct intended building the Buyer agrees to pay for subject survey.”
“Buyer and Seller agree the Subject Property that remains after rights-of-way have been removed will be approximately 123 feet by 326 feet to be determined by subject survey.
“Seller agrees to cooperate with Buyer in his attempts to determine if a change in zoning to E-l may be obtained.” (Emphasis supplied.)
It is undisputed that, prior to the sale, the property had a zoning classification of A-l residential, and the zoning classification was to be changed to E-l, office and professional. It is also important to note that the use of the term “intended building” refers only to the soil tests, and has nothing to do with the provision regarding a change in zoning.
There is contained in the plaintiff s brief on appeal a rider to the contract accepted March 11, 1977, which was executed by both the seller, Cooper, and the buyer, Rubin. This rider states that it is agreed between the parties that the change of the zoning to E-l or such other classification as Buyer selects, shall occur prior to closing. It is further stated that the duties and obligations of the buyer under the contract are to be cancelled if the buyer is unable to secure a change in the zoning of the property to E-l or such other zoning classification which the buyer selects. This provision is important because it gives the buyer the right to obtain a zoning classification other than E-l (office and professional), if he so desires.
In the rider, it is also provided that, if the soil test does not indicate that the buyer can construct in a reasonable, normal manner the “type of building contemplated by Buyer,” then the buyer may cancel its duties and obligations under the contract. Again, the reference to the type of building is concerned only with the soil test. The buyer is to be protected if the type of building contemplated by the buyer cannot be constructed because of the soil.
A supplemental agreement was entered into between the seller, Cooper, and the buyer, Rubin, dated May 6, 1977. This supplemental agreement extends the time for the buyer to obtain soil tests until July 15, 1977, and for the agreement to be cancelled and the down payment to be refunded in the event the soil tests do not indicate that the buyer can construct the type of building contemplated in a reasonable, normal manner. Again reference is made to the fact that the buyer shall have until June 27,1977, to change the zoning classification to E-l or “such other zoning classification as Buyer selects.” The original contract, together with the addendum, the rider, and the supplemental agreement, constitute the entire contract between the parties. These various documents contain in writing a number of conditions for the protection of both the seller and the buyer. At no place in any of the instruments is there any restriction or condition that the defendant buyer must construct a 4,000 square foot building on the property.
Other documents attached to plaintiff s brief show that a petition for change of zoning was filed by Dr. Ben Rubin, Jr., with the city planning commission, seeking to change the zoning classification of the property from A-l residential to E-l office and professional. The plaintiff, Ruth W. Cooper, signed the petition as the owner of the property. In the petition, it is stated that the intended construction of the building is an office building of approximately 4,000 square feet. A change in zoning notice was sent to Ruth Cooper, stating that the following uses are permitted: “Any use permitted in ‘E’ Apartment; beauty parlor or barber shop, custom dressmaking or millinery shop, photographers, medical clinics, office for business or professional occupancy.” The exhibits attached to the plaintiff s brief show that Dr. Rubin had prepared plans for a small medical building of approximately 4,000 square feet. The plans also provided for sixteen 10' x 20' parking spaces. The minutes of the planning commission indicate that Dr. Rubin appeared at the hearing and stated that the petition is for a one-story medical building for himself and his partner.
The petition for change of zoning was approved by the city planning commission. It cannot be denied that at the time the change in zoning was granted it was the intention of Dr. Rubin to build a one-story medical office building for himself and his partner.
There is also an affidavit in the record made by John H. DeLap. In his affidavit, DeLap states:
“I contacted Ms. Cooper, in late February, 1977, and told her of the offer and obtained an Exclusive Right To Sell Agreement for Dr. Rubin only. Ms. Cooper had some reservations about Dr. Rubin’s use of the property, I therefore set up a meeting between Ms. Cooper and Dr. Rubin, on or about March 4, 1977. I was not in the room for the entire meeting, but I did hear Dr. Rubin tell Ms. Cooper that he planned to build a medical office for himself and other Doctors.
“Ms. Cooper seemed satisfied with Dr. Rubin’s plans and a contract was entered into.”
From this affidavit and the affidavit of plaintiff Cooper, we must assume that, at the time the written contract was entered into, Dr. Rubin advised Ms. Cooper, the plaintiff, that he planned to build a medical building of approximately 4,000 square feet and showed her the proposed plans for the building.
In plaintiff s written response to defendant’s motion for summary judgment, plaintiff states that Dr. Rubin approached plaintiff with an offer to buy her land. The property was not for sale on the open market. Plaintiff was hesitant to sell the land as it adjoined her home, but Dr. Rubin promised her the land would be most beneficially used for the operation of a small 4,000 square foot medical building. She did not wish the land to be used for any other purpose than the small medical building previously mentioned.
The motion for summary judgment filed by Dr. Rubin denied that Dr. Rubin made any agreement that any particular structure would be built on the premises, although we must assume that a particular structure was contemplated by Dr. Rubin at the time the contract for sale was entered into.
After Dr. Rubin took possession of the property and the terms of the written contract were fully performed by both parties, Dr. Rubin admits that no building was ever constructed by him on the real estate. It is undisputed that he sold the property in 1983, six years later, to the defendants, Warren H. Bennett and Elaine Bennett. During the fall of 1985, the Bennetts and RE-MAX Wyandotte County Real Estate, Inc., commenced the construction of an office building larger than the 4,000 square foot medical building previously contemplated by Dr. Rubin. Plaintiff contends that, by construction of the larger building, Dr. Rubin breached the contract he had entered into with plaintiff Cooper in 1977, and that the other defendants, the Bennetts, RE-MAX Wyandotte Real Estate, and the contractors, wrongfully caused the present building to be constructed.
With the above facts before the court, Judge Zukel granted Rubin’s motion for summary judgment. The trial court dismissed plaintiff Cooper’s claim against Rubin on the basis that it was barred by the statute of frauds.
On this appeal, we have before us only the dismissal of plaintiff Cooper’s claim against defendant Rubin. The other matters involving the propriety of the zoning change granted later are not now before the court. The basic issue presented to the court is whether the trial court erred in granting summary judgment on the motion of the defendant Rubin, on the basis that plaintiff Cooper’s claim is barred by the statute of frauds.
Simply stated, plaintiff claims that defendant Rubin promised plaintiff that he would build a small office building of approximately 4,000 square feet and that he would use the land for the small office building and for nothing else. As stated above, Dr. Rubin relied on the statute of frauds as a defense to the claim. The Kansas statute of frauds, K.S.A. 33-106, sets forth certain specific-cases where a writing is required before a cause of action may be brought for breach of contract. The statute, in substance, provides that no action shall be brought upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them, “unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized in writing.”
The general rule recognized throughout this country is that an oral agreement restricting the use of real property comes within the terms and application of those statutes which require certain classes of contracts to be in writing and which are generally termed statutes of frauds. See the annotation in 5 A.L.R.2d 1316, where examples of particular types of restrictions contained in an oral agreement are discussed.
In Insurance Co. v. Haskett, 64 Kan. 93, 67 Pac. 446 (1902), it was held that an easement for a private way is an interest in lands, and cannot be created by a parol grant. Thus, an oral contract granting an easement is within the statute of frauds. In Ross v. Cook, 71 Kan. 117, 80 Pac. 38 (1905), it was held that a contract for the sale of grass growing upon the land of the seller to be cut and removed by the buyer is one for the sale of an interest in real estate within the meaning of the statute of frauds, and cannot be enforced unless evidenced by a memorandum in writing.
In Reeves v. Morris, 155 Kan. 231, 124 P.2d 488 (1942), an action was brought by certain property owners to enjoin the threatened violation of certain restrictive agreements forbidding the erection of any buildings except single family residences in Lincoln Heights, an addition to the City of Wichita. These restrictions were contained in the deeds to various property owners after more than 5/6 of the land had been sold and developed in conformity with such plan and restrictions. The developer of the property then attempted to sell some of the lots to which the foregoing plan and restrictions had applied, to be used for the purpose of erecting a church building. This use was in conflict with the general plan of development and restrictions therein and contrary to those observed throughout the addition. The joint property owners brought an action to enjoin the developer from completing the construction of the church. An injunction was granted which was affirmed by the Supreme Court. On appeal, the defendants contended that under the judgment of the trial court the plaintiff property owners hold an easement in the land of defendants; that an easement is an interest in land; and that under the statute of frauds a contract for sale of land or any interest therein is void unless the agreement is in writing. On appeal, the Supreme Court recognized that restrictive covenants have long been recognized in this state. These restrictions or equitable servitudes are based on the equitable principle of notice — that the person who takes land with notice of a restriction upon it will not in equity and good conscience be permitted to act in violation of these restrictions. The court held that the rights of the property owners were based solely on equitable principles. The developers were simply estopped from using the property for building a church under principles of equity.
It is clear to us that under established law, an oral agreement made in connection with a written contract for the sale of real estate, whereby the buyer agrees to build only a particular type of building on the premises, creates an interest in real estate and falls within the statute of frauds. Such an oral contract is not enforceable unless the equities of the case require its enforcement.
In the case now before us, neither the original real estate contract accepted by the buyer on March 11, 1977; nor the addendum to the contract accepted March 11,1977; nor the rider agreement accepted March 11, 1977; nor the supplemental agreement dated May 6,1977, restricted the buyer, Dr. Rubin, as to the type of building he could build on the premises. If we apply the statute of frauds and the cases interpreting the same, any oral contract restricting the use of the premises is unen forceable and cannot be made the basis for a cause of action, unless principles of equity require the oral agreement to be enforced. A restrictive covenant imposing a restriction upon the use of real property is an interest in land within the statute of frauds, including any restriction on the size and type of building to be constructed by the buyer on the real estate purchased.
The plaintiff seeks to avoid the application of the statute of frauds by relying on the doctrine of equitable estoppel recognized in Walker v. Ireton, 221 Kan. 314, 559 P.2d 340 (1977). In Walker, this court held that a contract for the transfer of an interest in land may be specifically enforced notwithstanding failure to comply with the statute of frauds (K.S.A. 33-106), if it is established that the party seeking enforcement, in reasonable reliance on the contract and on the continuing assent of the party against whom enforcement is sought, has so changed his position that injustice can be avoided only by specific enforcement. Syllabus ¶ 2 states:
“A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce the action or forbearance is enforceable notwithstanding the Statute of Frauds if injustice can be avoided only by enforcement of the promise. The remedy granted for breach is to be limited as justice requires. In determining whether injustice can be avoided only by enforcement of the promise, the following circumstances are influential: (1) the availability and adequacy of other remedies, particularly cancellation and restitution; (2) the definite and substantial character of the action or forbearance in relation to the remedy sought; (3) the extent to which the action or forbearance corroborates evidence of the making and terms of the promise, or the making and terms are otherwise established by clear and convincing evidence; and (4) the reasonableness of the action or forbearance and the misleading character of the promise.”.
In Walker, 221 Kan. at 320, it is stated that from the beginning the basis for removal of a case from the application of the statute of frauds has been the reliance by one of the parties to the oral contract to his detriment under circumstances where gross injustice would result unless the oral contract was enforced. The statute of frauds was enacted to prevent fraud and injustice, not to foster or encourage it, and courts will, so far as possible, refuse to allow it to be used as a shield to protect fraud and as a means to enable one to take advantage of his own wrong. Furthermore, where it is sought to enforce an oral contract for the sale of an interest in real estate on the grounds that it has been performed by the party seeking to enforce it, it must appear that a failure to enforce would amount to a fraud against the party. It is further stated that, absent compelling equitable considerations, an oral contract within the statute of frauds will not be specifically enforced. The Walker opinion considered all of these various principles and concluded that, under all the facts and circumstances, equity did not require the statute of frauds to be removed as a defense to the action for specific performance of the oral contract. There was no claim that there was any relationship of trust or confidence between the parties. There were no allegations or evidence of false representation of existing facts.
The problem in the present case is to determine whether or not equity requires the statute of frauds to be removed as a defense to any alleged oral contract that defendant Rubin would build a building no larger than a 4,000 square foot office building on the purchased property. From the undisputed facts and circumstances in this case, we have concluded that the trial court did not err in granting summary judgment to defendant Rubin and in dismissing the claim asserted against him by plaintiff Cooper. In arriving at this conclusion we have considered as important the following undisputed facts:
(1) The seller, Cooper, had the intent to sell the particular property long before Dr. Rubin appeared as a prospective purchaser. It is undisputed that the property had been listed with the realtor, John DeLap, from August 1975 to July 1976, when the listing expired. Thus, apparently, prior to 1977, plaintiff Cooper was willing to sell the property to any purchaser that might come along and meet her purchase price.
(2) Plaintiff Cooper entered into an exclusive right to sell agreement with her realtor, John DeLap, in which Cooper stated that it was understood that the property was offered for the sum of $45,000, on the following terms: Cash and that the listing pertained to Ben Rubin only. If the seller really intended that the property should not be sold unless a restriction was placed in the contract limiting the size of the building to be constructed, why was that express provision not included in the seller’s contract with the realtor?
(3) John DeLap was the realtor employed by seller Ruth Cooper. Buyer Rubin’s real estate agent was Rod Minkin, who contacted John DeLap about Dr. Rubin wanting to make an offer on the property. According to DeLap’s affidavit, the seller Cooper had some reservation about Dr. Rubin’s use of the property and a meeting was set up between Cooper and Dr. Rubin just prior to the time the contract was entered into. DeLap heard Dr. Rubin tell Cooper that he planned to build a medical building for himself and other doctors, and Cooper seemed to be satisfied with Dr. Rubin’s plans and thereafter the contract was entered into. The real estate contract was apparently prepared by John DeLap, because the contract was made in the form of an offer by the seller, Cooper, which was accepted by defendant Rubin. There were many written conditions listed in the sales contract, but nothing was included therein restricting the size of the building to be constructed on the site. If that had been the intent of the seller, Cooper, why did she not inform her realtor, DeLap, that the restriction should be included within the written contract?
(4) The only mention of an “intended building” in the addendum contract and in the rider is in connection with soil tests to be made upon the property which would be necessary in order to determine whether a particular building could be constructed on the premises and which would permit the buyer to cancel the contract if the soil tests were not satisfactory.
(5) We also think it important that both the rider to the contract, accepted March 11, 1977, and the supplemental agreement dated May 6,1977, do not restrict the buyer Rubin to a change in zoning to an E-l classification, but permit the buyer to obtain such other zoning classification as the buyer selects. Why would a seller who obtained and relied upon a promise from the buyer that the building was to be of a type included in an E-l classification agree that the buyer could obtain not only a change to an E-l zoning classification but such other zoning classification as the buyer might desire?
(6) We think it clear from the evidence that, at the time the property was purchased and the zoning was changed, Dr. Rubin did intend to build a one-story medical building in accordance with his plans. It is also true that, after he acquired the property, Dr. Rubin did not build the building. If at the time of the sale, Dr. Rubin intended to commit a fraud upon the seller by selling the property at a greatly enhanced price to some other purchaser, would he not have done so within a short period of time? Instead, Dr. Rubin held the property for some six years and then in 1983 sold the property to the Rennetts, who had no knowledge of the claims of the plaintiff until after construction of their office building was commenced.
In view of all these circumstances, which are undisputed in the record, we have concluded that equity does not require the statute of frauds to be excluded as a defense to the action for breach of contract in this case. There was no showing of any relationship of trust or confidence between the seller, Cooper, and the buyer, Rubin. There was no evidence of any false representation of an existing fact at the time the contract was entered into. The seller Cooper was represented at all times by her realtor. Any discussions as to the type of building to be built upon the premises were apparently not deemed important enough to the seller to be included as a condition in the written contract of sale. As noted above, in order for the doctrine of promissory estoppel to be applicable, it must be shown that its enforcement is necessary to avoid injustice. In our judgment, equity and justice in this case do not require enforcement of the alleged oral contract either by way of specific enforcement or by permitting the seller to recover damages from the defendant, Rubin.
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|
The opinion of the court was delivered by
Price, J.:
The question in this case concerns the constitutionality of Senate Bill No. 298, which was passed by the 1961 legislature and became effective on March 29, 1961, upon publication in the official state paper. The act appears as Chapter 81, Session Laws of 1961.
The detailed provisions of the act, and the contentions with respect thereto, are such that no attempt will be made to summarize them. We therefore quote the act in full:
“An Act relating to cities; authorizing cities to purchase, construct, reconstruct, equip, maintain, repair, lease and sell tinder lease-purchase agreements, and acquire sites for agricultural, commercial, industrial and manufacturing facilities, authorizing cities to finance said facilities solely from the proceeds derived from the sale of revenue bonds.
“Be it enacted by the Legislature of the State of Kansas: ■
“Section 1. Purpose of act. It is hereby declared that the purpose of this act shall be to promote, stimulate and develop the general economic welfare and prosperity of the state of Kansas through the promotion and advancement of industrial, commercial, agricultural, natural resources and recreational development in the state; to encourage and assist in the location of new business and industry in this state and the expansion of existing business development; and to promote the economic stability of the state by providing greater employment opportunities and diversification of industry thus promoting the general welfare of the citizens of this state by authorizing all cities of the state to issue revenue bonds, the proceeds of which shall be used only to purchase or construct, maintain and equip buildings and acquire sites therefor and to enlarge or remodel buildings and equip the same for agricultural, commercial, industrial and manufacturing facilities and to enter into leases or lease-purchase agreements with any person, firm or corporation for said facilities.
“Sec. 2. Construction of facilities and lease or lease-purchase agreements for facilities constructed for agricultural, commercial, industrial, natural resources, recreational development and manufacturing enterprises. Any city shall have power to issue revenue bonds, the proceeds of which shall be used only to purchase, construct, reconstruct, equip, maintain or repair buildings and to acquire sites therefor, and to enlarge or remodel said buildings and equip the same for agricultural, commercial, industrial, natural resources, recieational development and manufacturing facilities with power to enter into leases or lease-purchase agreements by ordinance with any person, firm or corporation for said facilities, said facilities to be constructed in any city or its environs without limitation as to distance, providing the governing body of said city declares that said facility, if in being, would promote the welfare of the city.
“Sec. 3. Conditions of agreement. Such agreements shall provide for a rental sufficient to amortize the cost of facilities to be constructed and equip ment, plus the fair market value, on the date of the agreement, of the site, if it is necessary to purchase a site. Such agreements shall also provide for a reasonable rate of interest on the outstanding principal and reimburse the city for the cost of any other obligation assumed by it under the contract.
“Sec. 4. Obligations payable solely from rentals; bonds, requirements. Nothing in this act shall be so construed as to authorize or permit any city to make any contract or to incur any obligation of any kind or nature except such as shall be payable solely out of the rentals from such facilities. Such cities may issue bonds payable solely and only from the revenues derived from such facilities. Such bonds may be issued in such amounts as may be necessary to provide sufficient funds to pay all the costs of purchase or construction of such facility, including site, engineering and other expenses, together with interest. Bonds issued under the provisions of this act are declared to be negotiable instruments, shall be executed by the mayor and clerk of the city, and shall be sealed with the corporate seal of the city. The principal and interest of said bonds shall be payable solely and only from the special fund herein provided for such payments, and said bonds shall not in any respect be a general obligation of such city, nor shall they be payable in any manner by taxation. All details pertaining to the issuance of such bonds and the terms and conditions thereof shall be determined by ordinance of the city.
“Sec. 5. Pledge of facility and earnings. The governing body of the city by ordinance may pledge the facility purchased or constructed and the net earnings therefrom to the payment of said bonds and the interest thereon, and provide that the net earnings thereof shall be set apart as a sinking fund for that purpose.
“Sec. 6. Amount of revenue bonds. In no case in which revenue bonds are issued under and by virtue of this act shall any revenue bonds be issued for tire cost of the facility, including the site therefor, in excess of the actual cost of the same.
“Sec. 7. Bonds and income therefrom exempt from taxation. All bonds issued pursuant to this act and all income or interest therefrom shall be exempt from all state taxes except inheritance taxes.
“Sec. 8. Revenue bonds, defined, recitals. Revenue bonds, as the term is used in this act, are defined to be bonds issued by any such city to be paid exclusively from the revenue produced by the property and facilities improved, constructed, reconstructed, repaired or otherwise improved by the use of the proceeds of said bonds. Such revenue bonds shall not be general obligations of tlie city, and shall not contain the recitals set forth in section 10-112 of the General Statutes of 1949, or any amendments thereto. Such revenue bonds shall, however, contain the following recitals, viz.: Such bonds shall recite the authority under which such revenue bonds are issued, and that they are issued in conformity with the provisions, restrictions and limitations thereof, and that such bonds and the interest thereon are to be paid from the money and revenue received from the fees charged and rental received for the use of the property and facilities improved, constructed, reconstructed, repaired or otherwise improved by the proceeds, in whole or in part, of such revenue bonds when issued and sold.
“Sec. 9. Construction of act. The enumeration of any object, purpose, power, manner, method or thing in this act shall not be deemed to exclude like or similar objects, purposes, powers, manners, methods or things.
“Sec. 10. Act supplemental. This act shall be cumulative of any other law or laws relating to the subject of this act and shall be supplemental thereto.
“Sec. 11. Effective date. This act shall take effect and be in force from and after its publication in the official state paper.”
Shortly after the effective date of the act, and pursuant to the authority granted thereunder, the governing body of the city of Pittsburg passed two ordinances (Nos. S-10 and S-ll) whereby the city was authorized to issue revenue bonds in an amount not to exceed $130,000 for the purpose of purchasing a site and constructing and equipping a building or other facilities thereon — the same in turn to be leased to the Trialloy Company, Inc., for the operation of a textile business.
The state, upon the relation of the attorney general, filed this action in quo warranto to test the authority of the city to proceed under the two mentioned ordinances — the basis of the action being that the act is unconstitutional and void in several particulars, and therefore the ordinances and all proceedings thereunder are likewise void. The prayer of the petition was that the city and its governing body be ousted and permanently enjoined from proceeding further in the matter.
At the conclusion of the trial the court found that the purposes for which revenue bonds may be issued under the act are for the public benefit and for a public purpose. As conclusions of law, the court held the act not to be unconstitutional on any of the grounds asserted and rendered judgment in favor of defendant city and its governing body.
The state has appealed, and by appropriate specifications of error raises the questions hereafter discussed.
No attack is made on the ordinances — as such. The contention is that the act itself is unconstitutional and therefore the ordinances and all proceedings thereunder are likewise void.
I and V.
The first and fifth contentions will be considered together. They are (I) that the act is contrary to the public pokey of the state because the purposes for which revenue bonds may be issued thereunder are not public in nature and are not for public purposes, and (V) that the act violates section 5 of article 12 of our constitution, which reads:
“Provision shall be made by general law for the organization of cities, towns and villages; and their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, shall be so restricted as to prevent the abuse of such power.”
In this connection it is argued that the act in effect authorizes a city to loan its credit for the furtherance and promotion of a business or industry strictly private in nature; and that any economic benefit resulting to the city and its inhabitants through increased employment, and the like, is purely secondary to the benefits and advantages accruing to the private industry so “subsidized” — all of which, it is contended, is contrary to the public policy of the state and violates that portion of the quoted constitutional provision which provides that the powers conferred on cities by law “shall be so restricted as to prevent the abuse of such power.”
In an early case dealing with the constitutional provision in question (Hines et al. v. City of Leavenworth et al., 3 Kan. 186) it was said:
“It is not a subject proper for judicial cognizance but belongs to another tribunal. It would involve the exercise of a discretion that the framers of the constitution never intended should be deposited in any court. It would in effect constitute the court a law-maker rather than a law expounder. When a law is passed embracing any of the subjects mentioned in the fifth section, it is the duty of the court, when called upon, to determine whether it contains restrictions, and if it does contain them the law must be held to be valid, notwithstanding the members of the court might doubt their sufficiency to prevent abuses. It is a subject wholly under the control of the political department of the government. Whatever the legislature determines to be a sufficient restriction, if it be a restriction at all, must be final.” (pp. 203, 204.)
A portion of the foregoing statement was quoted with approval in Wulf v. Kansas City, 77 Kan. 358, 362, 363, 94 Pac. 207, where, at page 367, in discussing the determination of the validity of legislative acts, it was said:
“(1) Our constitution limits, rather than confers, power, and hence we look to it to see what it prohibits instead of what it authorizes. (Citing.) (2) To declare an. act of the legislature unconstitutional some provision must be pointed out which, either in terms or by necessary implication, makes it so. (Citing.) (3) The judicial department should not interfere with the legislative conscience, unless there be a clear violation of some provision of the constitution. (Citing.) (4) No statute should be declared unconstitutional unless the infringement of the superior law is clear beyond substantial doubt. (Citing.)”
The Hines and Wulf cases were cited with approval in State, ex rel., v. Kansas City, 140 Kan. 471, 476, 37 P. 2d 18, and State, ex rel., v. Kansas City, 149 Kan. 252, 255, 86 P. 2d 476, which dealt with the right of the city of Kansas City to issue revenue bonds in connection with the construction and improvement of public levees and wharves. With respect to section 5 of article 12, above, it was said in the last-mentioned case, at page 255:
“This provision has been the subject of judicial exposition ever since the foundation of the state. It scarcely states a rule of constitutional law that a court can lay hold of. It is largely admonitory and was intended by the framers of our constitution to be addressed to the wisdom and conscience of the legislative branch of our state government.”
In State, ex rel., v. Kansas City, 151 Kan. 2, 98 P. 2d 101, an aftermath of the two Kansas City cases above, it was held that where an act authorized the city to issue revenue bonds for the construction and improvement of its public levees and to establish thereon a wholesale fruit and vegetable market, a resolution of the city to expend a portion of the terminal market’s rental income and to offer abatements of rents to procure desirable prospective tenants, did not transcend the express or implied limits of authority conferred on the city government so as to warrant judicial interference therewith. In the course of the opinion it was said:
“Note that the statute says the governing hody of the city may lease the market facilities upon such terms and conditions ‘as in the judgment of said governing body will be to the best interests of the city.’ Under such a broad grant of statutory power, it would appear that what the city and its governing officials undertake to do would have to transcend all reasonable bounds of official discretion before a court would be justified in interfering. ... It may be suggested that if defendants have such broad discretionary authority they or their successors in office may allow unfair discrimination or abatements of rent between tenants, or exercise favoritism in other respects. That, of course, is a possibility, but if the hands of public officials are to be judicially tied on that account, where the legislature itself has not seen fit to tie them, any official board or officer could be stopped by judicial interference. However, Kansas government is founded on the assumption that public officers and boards, great and small, will exercise their express and implied powers fairly and honestly.” (pp. 8, 9 and 10.)
And see the early case of Leavenworth Co. v. Miller, 7 Kan. 479, 12 A. R. 425, in which a statute authorizing counties to subscribe to the capital stock of railroad companies and to issue bonds in payment therefor was under attack, where it was held:
“The government may accomplish a public purpose through the means of a private agency, a private individual or individuals, or a private corporation. It is the ultimate object to be obtained which must determine whether a thing is a public or a private purpose. The ultimate object of the government in granting municipal aid to railroads is to increase the facilities for travel and transportation from one part of the country to the other, which object is, in its nature, a public purpose.” (syl. 13.)
Legislation similar to the act here under consideration has been stricken down in several states — and upheld in others.
In Village of Moyie Springs, Idaho v. Aurora Mfg. Co., 82 Idaho 337, 353 P. 2d 767, it was held that a similar act violated a specific provision of the constitution prohibiting a county, city, town, township, board of education, school district or other subdivision from lending or pledging the credit or faith thereof, directly or indirectly, in any manner, to, or in aid of, any individual, association or corporation, for any amount or for any purpose whatever.
The Supreme Court of Florida struck down a similar act as being violative of a specific provision of the constitution of that state which prohibits the legislature from authorizing any city to lend its credit to any corporation. (State v. Town of North Miami, Fla., 59 So. 2d 779.)
A similar act in Nebraska was held invalid as being in violation of a specific provision of the constitution to the effect that the credit of the state shall never be given or loaned in aid of any individual, association or corporation, it being further held that such provision was applicable to all subdivisions of the state. (State ex rel. Beck v. City of York, 164 Neb. 223, 82 N. W. 2d 269.)
On the other hand, for decisions directly to the contrary, see Faulconer v. City of Danville, 313 Ky. 468, 232 S. W. 2d 80; Holly v. City of Elizabethton et al., 193 Tenn. 46, 241 S. W. 2d 1001, and Wayland v. Snapp, - Ark. -, 334 S. W. 2d 633.
It will be noted that provisions of the Idaho, Florida and Nebraska constitutions specifically prohibit the loaning of credit by the state or a subdivision thereof — as the case may be — to any corporation, whereas our applicable provision (section 5, article 12, above) provides merely that the power of a city to loan its credit “shall be so restricted as to prevent the abuse of such power.”
The matter before us, therefore, narrows down to the question whether the act under consideration contains restrictions to prevent cities from abusing their power to loan their credit — if in fact it may be said their credit is “loaned” by taking advantage of the provisions of the act. In the quotations from the Hines and Kansas City cases, above set out, it was said that our constitutional provision is addressed to the wisdom and conscience of the legislative branch of our state government, and that when a law is passed embracing any of the subjects mentioned in the provision it is the duty of the court, when called upon, to determine whether it contains restrictions, and if it does contain them the law must be held to be valid, and that whatever the legislature determines to be a sufficient restriction, if it be a restriction at all, must be final.
In section 1 of the act the legislature, in effect, has said that the encouragement of industrial development so as to promote the general welfare of the citizens of the state, is a public purpose and the public policy. Section 2 of the act authorizes a city to proceed only in the event it is found by the governing body that the welfare of the city will be promoted. Section 3 of the act contains certain restrictions with respect to agreements entered into by a city, and section 4 contains further limitations and restrictions and the provision that “said bonds shall not in any respect be a general obligation of such city, nor shall they be payable in any manner by taxation.” Other sections of the act contain further limitations and restrictions.
In the above-mentioned Kansas City case (149 Kan. 252, 86 P. 2d 476) it was said:
“An examination of the statute under which the challenged proceedings are being undertaken will reveal a number of restrictions which the legislature must have deemed sufficient to prevent the defendant city from abusing the corporate powers vested in it, and the legislative wisdom on this subject is not open to judicial review.” (p. 255.)
And so here. The act is not invalid on either the first or fifth grounds urged by the state.
II.
It is contended that section 2 of the act, which authorizes the construction of facilities “in any city or its environs without limitation as to distance,” constitutes an unlawful delegation of legislative authority to the cities in violation of section 1, article 2 of the constitution, which provides that “the legislative power of this state shall be vested in a house of representatives and senate.”
In this connection several unrealistic and unreasonable illustrations are suggested — such as the city of Pittsburg endeavoring to build a facility at Goodland — several hundred miles distant. This argument overlooks the ordinary meaning of the words “or its environs”; that facilities can be. constructed only in the event the governing body finds that it would promote the welfare of the city, and, further, that the legislature and the people have the right to assume that public officials will exercise their express and implied powers fairly, honestly and reasonably. It is quite true that in delegating powers the legislature must fix adequate general standards, but in many instances the filling in of details must, in the very nature of things, be left to the local authorities. (Coleman v. Newby, 7 Kan. 82, 88; State, ex rel., v. City of Topeka, 176 Kan. 240, syl. 2 and 3, 270 P. 2d 270; State, ex rel., v. Urban Renewal Agency of Kansas City, 179 Kan. 435, 440, 441, 296 P. 2d 656.
The act is not invalid on the ground asserted.
III.
It next is contended that the act is invalid as being in violation of section 16, article 2 of the constitution, which provides that no bill shall contain more than one subject, which shall be clearly expressed in its title.
It is argued that the title of the act refers only to agricultural, commercial, industrial and manufacturing facilities — whereas sections 1 and 2 of the body of the act enumerate facilities for natural resources and recreational development, in addition thereto — and therefore the body of the act is broader than its title.
It also is argued that sections 1 and 2 of the act provide that cities may enlarge and remodel buildings, but that the title states that cities may only purchase, construct, reconstruct, equip, maintain and repair buildings.
Some mention also is made of the fact that sections 4 and 5 of the act provide for methods of retiring revenue bonds issued by the city, but that the title provides only, in an indirect way, for their issuance.
It is not contended that the act contains more than one subject— and in fact it does not. We are advised that the words “natural resources” and “recreational development” were inserted in the body of the act by way of an amendment when the senate was sitting as a committee of the whole. Due to the inept language, they do, perhaps, create some ambiguity. On the other hand, one might build a building for development of natural resources or a building for recreational purposes, but not one for natural resources or recreational development.
With respect to the second point under this heading, it is submitted that enlarging and remodeling buildings means the same as reconstructing or repairing buildings.
And concerning the third point under this heading, it is only reasonable to assume that reference to bonds — revenue or otherwise —raises an inference in any ordinary person’s mind that it follows that such bonds would some day be retired by payment. To the average person a bond simply means a pledge to pay at some particular time and at a stated rate of interest.
It is well settled that the title of an act need not be a synopsis or abstract of the entire act in all its details. (The State v. Barrett, 27 Kan. 213, syl. 3, 7 and 8; Water District No. 1 v. Robb, 182 Kan. 2, 9, syl. 2, 318 P. 2d 387.)
The act is not invalid as being in violation of the mentioned constitutional provision.
IV.
It also is contended the act is void in part wherein it attempts to authorize cities to issue bonds for an unlawful purpose — the maintenance of facilities.
The argument is too technical and is entirely lacking in merit. The word “maintenance,” as so used, is held to be synonymous with “taking proper care of,” “repairing,” or the like. On the subject see Concordia-Arrow Flying Service Corp. v. City of Concordia, 131 Kan. 247, 250, 289 Pac. 955.
VI and VII.
It next is contended that the authority to issue bonds at any rate of interest, over any period of time and for any amount, violates section 1, article 2 of the constitution, above, which, as stated, provides that the legislative power of this state shall be vested in a house of representatives and senate, and also that the act is void as being vague, ambiguous and indefinite in that, as contended, section 4 of the act states the bonds and interest shall be paid solely out of the rentals charged by the city, whereas section 5 of the act states that the facility may be pledged, together with the net earnings, to the payment of the bonds and interest thereon.
From the brief it is apparent these points are not seriously urged, and, without further discussion, they are held to be without substantial merit.
VIII.
Finally, it is contended the act violates the due process sections of our constitution (sections 1, 2 and 18 of the bill of rights) and the fourteenth amendment to the federal constitution by taking property without due process of law.
It is conceded that under the act there is no “taking of property” in the ordinary sense of the word, such as by eminent domain — but it is argued there is a “taking” in that the “credit” of a city belongs to its inhabitants and when that credit is abused by being “loaned” it amounts to a “taking of property” from such inhabitants. This contention, of course, presupposes that proceedings under the act will result in an abuse of the power of a city to loan its credit. It has not been shown that the act violates due process provisions or that it abridges the privileges or immunities of citizens, or that it deprives any person of his property or the equal protection of the law.
This contention also is without substantial merit.
IX.
Section 5, article 12 of our constitution, heretofore quoted, and with which this case is chiefly concerned, was amended by vote of the people at the 1960 general election by the adoption of the so-called “Home Rule Amendment.” This amendment, not yet appearing in our general statute books, may be found at Chapter 182, Session Laws of 1959, and became effective on July 1, 1961. The state urges that in the event the act here under consideration be held unconstitutional as being in violation of section 5, article 12, above, its invalidity is not to be held cured by the subsequent taking effect of the “Home Rule Amendment,” which, the state concedes, contains no such prohibitions as those found in section 5, article 12.
As previously stated, the act in question became effective on March 29, 1961, on which date section 5, article 12 was a part of the constitution. Our decision is that the act does not violate that constitutional provision. Therefore, any discussion of the effect of the “Home Rule Amendment” would be purely academic and we express no opinion thereon.
X.
The determination whether the act under consideration so restricts cities in loaning their credit “as to prevent the abuse of such power” (section 5, article 12) is considered to be the most serious question in this case. In reaching the conclusion that the act is not invalid, let it be said that we have not closed our eyes to arguments of the state that the provisions of the act “lead down the road to socialism” and conceivably could bring about chaos and disastrous results in municipal affairs with respect to bond issues. And neither do we subscribe to the view that “constitutional law,” at any given time, is the then current theory of what “ought to be done” in view of the prevailing practical and economic philosohpy of the times.
While unconstitutional exercise of power by the legislative branch of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint. From a purely legal standpoint, the rule in this state, as elsewhere, is that courts are concerned only with the power to enact statutes and cannot concern themselves with the wisdom of legislative acts. Courts neither approve nor condemn legislative policy, and their sole function is to determine the validity of a challenged act when measured by applicable constitutional provisions. (State, ex rel., v. Sage Stores Co., 157 Kan. 404, 413, 141 P. 2d 655, 323 U. S. 32, 89 L. Ed. 25, 65 S. Ct. 9; State, ex rel., v. Board of Regents, 167 Kan. 587, 596, syl. 4, 207 P. 2d 373; State, ex rel., v. Russell, 171 Kan. 709, 237 P. 2d 363.) For the removal of unwise laws from the statute books, appeal lies not to the courts but to the ballot and to the processes of democratic government.
In conclusion, we again quote from State, ex rel., v. Kansas City, 149 Kan. 252, 86 P. 2d 476:
“An examination of the statute under which the challenged proceedings are being undertaken will reveal a number of restrictions which the legislature must have deemed sufficient to prevent the defendant city from abusing the corporate powers vested in it, and the legislative wisdom on this subject is not open to judicial review.” (p. 255.)
Notwithstanding there are members of this court who entertain serious misgivings and doubts as to the wisdom and propriety of the act under consideration — it nevertheless is held not to violate the constitution on any of the grounds asserted.
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Johnson, J.:
Brandon C. Moser seeks review of the Court of Appeals’ dismissal of his driver’s license suspension appeal based upon its determination that Moser had failed to file a petition for judicial review of the Kansas Department of Revenue (KDR) action in a timely manner. We affirm.
On October 9, 2005, Moser was involved in a car accident but refused to submit to a Breathalyzer test. As a result, the law enforcement officer personally served upon Moser on that date a copy of the Officer’s Certification and Notice of Suspension, commonly referred to by its form number, DC-27. The DC-27 notified Moser that the form served as a temporary license that would be suspended on the 30th calendar day after the date the DC-27 was served on Moser unless he made a timely request for an administrative hearing. The form lists the various actions, i.e., lengths of suspension, that would be taken upon the recipient’s driving privileges, depending upon whether the officer certified a test refusal or a test failure and depending further upon the number of prior “occurrences” the driver had. The form also contained instructions on requesting an administrative hearing, which advised that a written request was to be postmarked no later than 10 calendar days after service of the DC-27.
Moser did not request an administrative hearing. Accordingly, on November 8, 2005, the KDR, through its Driver Control Bureau, sent Moser a document entitled Suspension Notice. The document informed Moser that his driver’s license was suspended for 10 years, from November 8,2005, to November 8,2015, as a result of a chemical test refusal on October 9, 2005. The 10-year length of suspension had been identified in the DC-27 as the action to be taken for a test refusal which was the driver’s fourth “occurrence.”
On December 5, 2005, more than 10 days but less than 30 days after the effective date of his suspension, Moser filed a petition for judicial review with the district court. Moser argued that the statute authorizing the 10-year suspension was unconstitutional because the length of the suspension was penal and “contrary to the remedial purposes of the implied consent statutes.”
KDR moved to dismiss Moser’s petition on two grounds. First, KDR asserted that the district court lacked jurisdiction to review the agency action because Moser had failed to timely file his petition as required by the 10-day rule in K.S.A. 2005 Supp. 8-259(a). Second, the KDR claimed that Moser, by failing to request an administrative hearing, had not exhausted his administrative remedies, which is a condition precedent to obtaining relief under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. The district court determined that the 10-day rule of K.S.A. 2005 Supp. 8-259(a) was inapplicable in this case and that Moser’s petition was timely filed under the 30-day rule of K.S.A. 77-613(b). However, the district court refused to consider the merits of the petition because it found that Moser had failed to exhaust his administrative remedies.
Moser appealed the adverse ruling on the exhaustion of administrative remedies issue, and the KDR cross-appealed the district court’s ruling on the timeliness issue. The Court of Appeals only addressed the cross-appeal, finding that its resolution of the timeliness issue was dispositive. The panel held that the 10-day rule of K.S.A. 2005 Supp. 8-259 applied in this case; that KDR’s November 8, 2005, notice of suspension sent to Moser was an order of suspension; and that the district court had erred in ruling that the 30-day rule of K.S.A. 77-613 governed the timing for Moser’s appeal. Nevertheless, given that the district court did not acquire jurisdiction over Moser’s petition because it was filed beyond the statutory time limit, the Court of Appeals found that it also lacked jurisdiction and dismissed the appeal. Moser v. Kansas Dept. of Revenue, No. 96,734, unpublished opinion filed March 7, 2008. Essentially, the Court of Appeals found that the district court had reached the correct result but for the wrong reason. See In re Marriage of Bradley, 282 Kan. 1, 8, 137 P.3d 1030 (2006) (if trial court reaches right result, decision upheld even though it relied on wrong ground or assigned erroneous reason for decision).
Moser petitioned for our review of the Court of Appeals dismissal on jurisdictional grounds. In addition, he asks that we review the other issues which were raised before, but not decided by, the Court of Appeals: whether a 10-year or lifetime suspension is contrary to the remedial purpose of the implied consent statutes; whether a constitutional issue may be raised for the first time on appeal; whether the district court erred in finding a failure to exhaust administrative remedies; and whether a petitioner’s tempo raiy driving privileges should continue while the suspension order is p'ending appeal in the Court of Appeals.
APPLICABILITY OF KS.A. 2005 Supp. 8-259
Moser argues that the 10-day statutory time limit in K.S.A. 2005 Supp. 8-259 only applies to a petition for review of a hearing order which is entered upon the conclusion of the administrative hearing provided for in K.S.A. 8-1020. See K.S.A. 8-1020(n), (o), (p). Moreover, Moser points out that K.S.A. 8-1020(h)(l) limits the scope of the administrative hearing on a test refusal to certain issues, which do not include a constitutional challenge to the length of the suspension. Therefore, because he did not request an administrative hearing, there was no hearing order, and because he petitioned for review upon an issue which could not have been considered at an administrative hearing, he was governed by the provision in K.S.A. 2005 Supp. 8-259(a) which makes the time limit of K.S.A. 77-613 applicable in “all other cases.”
Resolution of the issue presented hinges upon our interpretation of K.S.A. 2005 Supp. 8-259. Issues of statutory interpretation raise pure questions of law and are subject to this court’s unlimited review. Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629, 176 P.3d 938 (2008). “[Sjtatutory interpretation begins with the language selected by the legislature. If that language is clear, if it is unambiguous, then statutory interpretation ends there as well.” 285 Kan. at 629. Ordinary words should be given their ordinary meaning. State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007). Courts should not focus on an isolated part of a legislative act but are required, if possible, to consider and construe together all parts of the act in pari materia. McIntosh v. Sedgwick County, 282 Kan. 636, 642, 147 P.3d 869 (2006).
K.S.A. 2005 Supp. 8-259(a) provides, in relevant part:
“(a) Except in the case of [mandatory revocations, mandatory suspensions, or mandatory disqualifications], the cancellation, suspension, revocation, disqualification or denial of a person’s driving privileges by the division is subject to review. Such review shall be in accordance with the act for judicial review and civil enforcement of agency actions. In the case of review of an order of suspension under KS.A. 8-1001 et seq., and amendments thereto, or of an order of disquahfication under subsection (a)(1)(D) of K.S.A. 8-2,142, and amendments thereto, the pe titionfor review shall be filed ivithin 10 days after the effective date of the order and venue of the action for review is the county where the administrative proceeding was held or the county where the person was arrested. In all other cases, the time for filing the petition is as provided by K.S.A. 77-613, and amendments thereto, and venue is the county where the licensee resides.” (Emphasis added.)
Facially, the statutory language appears straightforward. Except for a few mandatory actions, a person may seek judicial review of the KDR’s “cancellation, suspension, revocation, disqualification or denial of a person’s driving privileges.” K.S.A. 2005 Supp. 8-259(a). If the action to be challenged on review is an order of suspension under Article 10 of Chapter 8 of the Kansas Statutes Annotated (the implied consent law), or an order of disqualification under K.S.A. 2005 Supp. 8-2,142(a)(1)(D), then the person must file his or her petition for review within 10 days of the order’s effective date. In all other cases, such as a cancellation, suspension, revocation, disqualification, or denial of driving privileges under some other statutory authority, the person petitioning for review must comply with the 30-day time limit set forth in K.S.A. 77-613.
However, at Moser’s urging, the district court apparently found that the meaning of “order of suspension” in K.S.A. 2005 Supp. 8-259(a) was ambiguous in light of K.S.A. 8-1020(o), which provides, in part: “The licensee may file a petition for review of the hearing order pursuant to K.S.A. 8-259, and amendments thereto.” The district court opined that because K.S.A. 8-1020(o) referenced 8-259, then the “order of suspension” mentioned in 8-259 must refer back to, and mean the same, as the “hearing order” referenced in K.S.A. 8-1020(o). Accordingly, given that Moser did not request an administrative hearing and there was no hearing order issued, the district court concluded that Moser’s case must fall within the category of “all other cases,” subject to the 30-day rule of K.S.A. 77-613. See K.S.A. 2005 Supp. 8-259(a).
As did the Court of Appeals, we disagree with the district court’s interpretation of the “order of suspension” language in K.S.A. 2005 Supp. 8-259(a) as meaning only the administrative hearing order referred to in K.S.A. 8-1020(o). “The trial court failed to recognize K.S.A. 8-1020(o) merely illustrates one type of order that can be appealed using 8-259. But just because 8-259 governs appeals taken under K.S.A. 8-1020(o), it does not mean those appeals are the only appeals governed by 8-259.” Moser, slip op. at 5-6.
Perhaps the most obvious hurdle to accepting the district court’s reasoning — and Moser’s appellate argument — is encountered while performing the first function of statutory interpretation, i.e., examining the language selected by the legislature. Looking first at K.S.A. 2005 Supp. 8-259(a), we see that the suspension order subject to the 10-day rule is conditioned by a statutory reference to “K.S.A. 8-1001 et seq.” The term “et seq.” is an abbreviation for the Latin term meaning “and the following ones.” Black’s Law Dictionary 592 (8th ed. 2004). Plainly, the statute refers to an order of suspension under any of the provisions of the implied consent law. If the legislature intended to refer solely to review of an administrative hearing order, it would have been a simple matter to say “in the case of review of a hearing order under K.S.A. 8-1020, and amendments thereto.” However, the legislature did not use that Hmiting language, and there is no construction rule which would justify such a drastic statutory revision.
Turning to K.S.A. 8-1020(o), we note that the legislature used the term “hearing order,” rather than “order of suspension.” Other subsections of the statute suggest that the distinction was deliberate. Subsection (m) describes the actions to be taken following the administrative hearing, with the choices being to enter an order “affirming the order of suspension” or enter an order to “dismiss the administrative action.” If a hearing order affirms an order of suspension, then the suspension order must have existed at the time of the hearing and must mean something separate and distinct from the hearing order.
Further, subsection (p) details the applicable procedure for seeking review of a hearing order. It specifies that “[t]o the extent that this section and any other provision of law conflicts, this section shall prevail.” K.S.A. 8-1020(p). Pointedly, it contains its own provision for the time within which a petition for review must be filed, i.e., “within 10 days after the effective date of the order.” K.S.A. 8-1020(p). If the legislature intended to equate K.S.A. 2005 Supp. 8-259’s “order of suspension” with K.S.A. 8-1020’s “hearing order,” then there would have been scant need to have duplicative provisions on the procedure and timing of a review petition.
In short, we find that the 10-day limit for filing a petition for review specified in K.S.A. 2005 Supp. 8-259(a) does not exclusively refer to the administrative hearing order. K.S.A. 2005 Supp. 8-259(a) applies to every order of suspension issued pursuant to the authority of K.S.A. 8-1001 et seq.
The next question in a case without a hearing order might be what document represents the order of suspension contemplated in K.S.A. 2005 Supp. 8-259. There appear to be only two choices in this case: the Officer’s Certification and Notice of Suspension (DC-27) served on Moser on the date of his test refusal or the Suspension Notice sent to Moser by the KDR on the date the suspension period began. Neither is clearly labeled as an “order of suspension.”
As noted, K.S.A. 8-1020(m) speaks to affirming an order of suspension at tihe administrative hearing, which would be a time at which the DC-27 had been served on the driver but the KDR’s final suspension notice would not have been sent. That suggests that the DC-27 is the order of suspension. However, K.S.A. 8-1002(f) provides that, upon receipt of the officer’s certification (DC-27), KDR is to review it to determine whether it meets statutory requirements. If so, “the division shall proceed to suspend the person’s driving privileges in accordance with the notice of suspension previously served.” K.S.A. 8-1002(f). That connotes a difference between the officer’s DC-27 notice of suspension and the KDR’s order of suspension.
Nevertheless, in this case, the distinction is academic. Both the DC-27 and the KDR’s notice of suspension identified the effective date of the suspension to be November 8, 2005, 30 calendar days after the October 9, 2005, test refusal. Moser had 10 days from the effective date of the suspension, or until November 18, 2005, to file a petition for review. The petition for review, filed December 5, 2005, was untimely.
As the Court of Appeals correctly stated: “[T]he time for taking an administrative appeal, as set by statute, is jurisdictional and delay beyond the statutory time limit is fatal. Lakeview Village, Inc. v. Board of Johnson County Comm’rs, 232 Kan. 711, 716, 659 P.2d 187 (1983).” Moser, slip op. at 4. Moreover, “if the trial court lacked jurisdiction to enter an order in Moser’s case, we have no jurisdiction to hear his appeal. See State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004).” Moser, slip op. at 3. Accordingly, we affirm the Court of Appeals’ dismissal of the appeal. That decision precludes our consideration of the remaining issues which Moser attempts to resurrect on review.
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Tbe opinion of the court was delivered by
Fatzer, J.:
The petitioners, Arthur Love and Rose Ann Love, who are husband and wife, filed a verified application for a writ of habeas corpus in the district court of Johnson County, Kansas, to obtain custody of their three minor children, ages five, three and two years. They alleged that the appellant-respondent, Henry Love, who is the uncle of Arthur Love, was unlawfully detaining the minor children against the wishes of the petitioners. The district court granted the writ and ordered the minor children discharged to the custody of the petitioners. The respondent has appealed.
A brief resume of the facts follows: In August, 1959, the respondent went to Oklahoma City, Oklahoma, at the request of the petitioners who were in the custody of the sheriff of Oklahoma County, Oklahoma. Their three minor children were in the Children’s Shelter in Oklahoma City. The petitioners were charged with forgeries in Oklahoma County, and other jurisdictions had placed hold orders on them because of similar offenses. The respondent agreed to assume responsibility of the three minor children. On October 14, 1959, the Children’s Court of Oklahoma County entered its order finding that the children were neglected by their parents and awarded custody of them to the respondent who took the children to his home near Tonganoxie, in Leavenworth County, where he and his wife cared for them. The respondent abated all the petitioners’ forged checks then the subject of prosecution in Oklahoma and those on which the hold orders in other jurisdictions were based. He also secured the petitioners release and brought them back to Kansas where they lived with the respondent and his wife for a short time, after which the respondent rented a home for them in Bonner Springs in Wyandotte County. However, the children remained with the respondent and his wife. Later the petitioners moved to Johnson County where they now reside.
On May 3, 1960, at the request of the petitioners, and while the children were in the respondent’s custody and residing in his home in Leavenworth County, the Children’s Court in Oklahoma County entered an order that the three minor children be returned to their parents and “authorized and directed” the respondent and his wife “to release said children from their custody and place them in the custody of their parents, (petitioners), forthwith upon receipt of a certified copy of this Order.” The respondent was not served with a copy of that order.
On June 10, 1960, petitioners commenced this proceeding and alleged that, among other things, the respondent lived in Leavenworth County where he unlawfully and forcibly detained the minor children in his home contrary to law and the wishes of the petitioners. A writ of habeas corpus was issued to the respondent by the judge of the district court of Johnson County commanding him to have the bodies of the three minor children in his chambers in Olathe, Kansas, on June 13, 1960, at 1:30 p. m. and then and there abide the writ. The sheriff of Johnson County served the writ upon the respondent while he was temporarily present in Johnson County transacting personal business.
On June 13, 1960, the respondent appeared by counsel for the purpose of moving the court for a continuance. The motion was allowed and the hearing continued until June 21, 1960. On that date the respondent appeared with counsel and moved to discharge the writ and to dismiss the proceedings upon the ground that the district court of Johnson County was without jurisdiction to compel the respondent to bring the minor children then domiciled in Leavenworth County to Johnson County and within its jurisdictional limits and there to be subject to the direction and order of that district court. That motion was overruled, and over the respondent’s objection, the court ordered him to produce the minor children forthwith. The record indicates there was an understanding between the court and counsel that the respondent’s compliance with the order to produce the minor children would in no wise constitute a waiver of his right to challenge the jurisdiction of the district court on appeal. The respondent produced the minor children and at the conclusion of the hearing, the district court ordered that they be released from respondent’s custody and discharged to the custody of the petitioners.
The principal question presented is the jurisdiction of the district courts of the state, and of. the judges thereof, to issue writs of habeas corpus in child custody cases and to hold proceedings on those writs.
The respondent contends that a habeas corpus proceeding involving the custody of minor children is in the nature of an action in rent; that the children themselves are the thing concerned in the writ, and that an action in rem can only be brought where the thing is, the children being the res. He asserts that the jurisdiction and venue of district courts in this state to issue writs of habeas corpus is limited to the territorial confines of the particular judicial district where the alleged illegal detention occurs, and argues that the district court of Johnson County had no power or authority to issue a writ to a person outside its district, commanding such person to bring into its district the person alleged to be detained, and maintains that the service of the writ upon him in Johnson County was a nullity.
The question of jurisdiction really turns on a question of venue, for it is not contended that the district court of Johnson County does not have jurisdiction of habeas corpus matters. For the purpose of determining this question we accept as true the allegation of the application for the writ, namely, that the respondent and the three minor children were residents of Leavenworth County which comprises the First Judicial District of the state and outside the Tenth Judicial District which comprises only Johnson County. The question, therefore, is: Can the venue be laid in Johnson County so as to give the judge of the district court of the Tenth Judicial District jurisdiction to entertain the application, issue the writ and conduct the proceeding, where service of the writ was had upon the respondent when he was temporarily present in Johnson County? If this question be determined adverse to the petitioners, it will then be necessary that the minor children be ordered surrendered by the petitioners and returned to the respondent’s home in Leavenworth County where he offers to accept immediate service of process of a similar nature in the district court of that judicial district.
The question of the venue of a habeas corpus proceeding is one upon which the code of civil procedure is not silent. It provides (G. S. 1949, 60-2204) that writs of habeas corpus may be granted “by any court of record” in termtime, or by “a judge of any such court.” While the code does not expressly provide that an application for a writ of habeas corpus shall be brought in the court of the county where the person is alleged to be detained (G. S. 1949, Ch. 60, Art. 22), the general rule is that a court has no authority to issue a writ of habeas corpus directed to a person detained outside its territorial jurisdiction, and that the application must be made in the judicial district where the alleged detention occurs (25 Am. Jur., Habeas Corpus, §§ 78, 106, pp. 202, 222; 39 C. J. S., Habeas Corpus, § 71, p. 617).
Almost sixty years ago this court had occasion to pass upon this question in In re Jewett, 69 Kan. 830, 77 P. 567, where it was held:
“The remedy sought in a proceeding in habeas corpus is a civil one, and, hence, judges of district courts have no power to direct tire issuance of the writ to a person outside of their districts, commanding him to bring into their districts the body of one detained outside thereof.” (Syl. f 5.)
In the opinion, after stating that a writ of habeas corpus is a remedy which the law gives for the enforcement of the civil right of personal liberty and that its purpose is to inquire into the cause of the restraint of the person alleged to be illegally detained and to deliver therefrom, if illegal, it was said:
“We feel satisfied that Judge Sheldon had no jurisdiction to direct the issuance of the writ to run outside his district, and that its service upon the petitioner outside such district gave the judge no jurisdiction of the petitioner. . . .” (l. c. 840.)
The question has since been considered in Phillips v. Hand, 183 Kan. 588, 331 P. 2d 291, where it was said:
. . Under our state constitution as explained in the Jewett case, a district court has no jurisdiction in habeas corpus over persons outside of its own district.” (l. c. 588.)
See, also, State v. Chance, 187 Kan. 27, 28, 253 P. 2d 516, where the rule was reaffirmed and applied.
While the petitioners concede the force and effect of our decisions, they argue that the Jewett case, supra, does not decide the question presented since the writ in that case was served outside the judicial confines of the district, and contend that the district court of Johnson County, or any other district court in the state, possessed jurisdiction of the subject matter of their application for habeas corpus and all that was necessary for it to make a valid adjudication of the issues was to secure personal jurisdiction over the detainer, the respondent, which was obtained when the sheriff personally served the writ upon him in Johnson County. We are not persuaded the contention is meritorious. In a child custody case a proceeding in habeas corpus is in the nature of a proceeding in rem (25 Am. Jur., Habeas Corpus, § 78, p. 202), and the application for a writ must be brought in the judicial district where the alleged detention occurs. As is noted, we do not have the question of the venue of such a proceeding in a judicial district which comprises more than one county.
The validity of the process of the district court of Johnson County was dependent upon its power to direct the issuance of the writ commanding the respondent to bring into its district the bodies of the minor children detained outside tihereof. In the Jewett case, supra, it was held that district courts have no power or authority to do so. Hence, on the basis of the petitioners’ verified application the district court of Johnson County had no authority to entertain the application, issue the writ, or conduct the proceedings, and service of the writ upon the respondent while he was temporarily present in Johnson County transacting personal business was a nullity.
Having no jurisdiction to issue the writ of habeas corpus in the instant case, the district court of Johnson County was without authority to order that the minor children be released from the respondent’s custody and discharged to the custody of the petitioners after the children were produced by the respondent over his objection. It is unnecessary that we here consider the validity of the order of the Children’s Court of Oklahoma County entered on May 3, 1960, but see Leach v. Leach, 184 Kan. 335, 336 P. 2d 425; Niccum v. Lawrence, 186 Kan. 223, 350 P. 2d 133, and Hannon v. Hannon, 186 Kan. 231, 350 P. 2d 26.
The judgment is reversed and the district court is directed to issue its order to the sheriff of Johnson County to cause the minor children to be placed in the custody of the respondent in his home in Leavenworth County where he offers to accept immediate service of process of a similar nature in the district court of Leavenworth County.
It is so ordered. | [
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The opinion of the court was delivered by
Price, J.:
Plaintiffs are the owners of land located within Riverside Sewer District No. 8 in Douglas county. They brought this action under the authority of G. S. Í949, 60-1121, to enjoin the defendant public officials from entering on the tax rolls of the county a special assessment levied for the construction of a main trunk sewer in the district.
The trial court denied injunctive relief, and plaintiff landowners have appealed.
The project for the creation of the sewer district was initiated in 1957 under the authority of G. S. 1949, 19-2704 to 2715, as amended. There appear to be no questions raised as to the regularity of proceedings by which the district was created. Involved in the case, however, are two provisions of G. S. 1959 Supp. 19-2705, which in pertinent part read:
“. . . All of the cost and expenses of the work provided for in- this act shall be assessed against the lots and pieces of ground contained within the district in which the same is situated (exclusive of improvements) and shall be levied and collected as one tax, in addition to the other taxes and assessments, and shall be by the county clerk, when so ordered by the county commissioners, placed upon the tax roll for collection subject to the same penalties, entitled to the same rebate, and collected in the same manner as other taxes: . . . Provided further, however, That if the board of county commissioners shall find that all of the property benefited by said improvements is benefited equally, the cost thereof may be assessed against such property on an area basis and notice of such finding and of said assessment shall be given by publishing the resolution fixing the assessments once a week for two (2) consecutive weeks in the official county paper. . .
There are 1,115.715 acres within the district. The cost of the sewer was $94,295.80. The defendant board of county commissioners found that all property in the district was benefited equally and under the authority of the last-above-quoted provision assessed the total cost on an area basis — that is, against all of the land in the district equally — in the amount of $84.52 per acre.
In this action to enjoin such assessment plaintiffs contend the finding of “equal benefit” is contrary to fact, and that the action of defendant board is an arbitrary and unwarranted exercise and abuse of power, and therefore null and void.
Other than the ultimate question of equal benefit to all land within the district — there are really no disputed questions of fact in the case.
The sewer district in question includes an extensive area northwest of and, in part, adjoining tire city of Lawrence. The project was initiated in 1957, and a petition for the establishment of the district, addressed to the board of county commissioners, was circulated. The secretary of the Lawrence Chamber of Commerce, and who also was secretary of the Lawrence Industrial Development Company, was active in circulating the petition. The proposed district was irregular in shape, with an extreme extent of two miles north and south and slightly more than two miles east and west. As heretofore stated, it included 1,115.715 acres. The petition for the creation of the district requested that die cost of the sewer be assessed against the lots and pieces of ground within the district but did not request that such assessments be on an area basis or call for any specific method of assessment. The project included forty-eight separate tracts, varying in size from one-fourth acre to 160 acres, and adapted to different and varying uses. By reason of its proximity to the city, and the availability of water and other utility services and transportation facilities, approximately one-third of the total area, located in the eastern part of the district, was adapted to industrial use. Another one-third had possibility for housing development, and the remaining one-third — in the western section — was predominantly farm land.
The petition for the creation of the district was not signed by any of the plaintiffs, and of the twenty-seven different owners of land within the proposed district, only nine signed the petition. Those nine, however, were the owners of 604.219 acres, constituting approximately fifty-four percent of the total acreage. Of these 604.219 acres, a total of 321.562 acres were owned by Hallmark Cards, the Santa Fe Land Improvement Company and the Lawrence Industrial Development Company, whose holdings were adapted to industrial use and who were interested only in industrial development. One of the remaining six signers was a lumber company engaged in the retail lumber business, and which had, in September, 1957, acquired 160 acres in the proposed district.
Plaintiffs’ lands are located at the southwest extremity of the district and their minimum distance from the trunk sewer ranges from about one mile up to approximately one and three-fourths miles. There are no improvements on any of their tracts located within the district. There is no access by road to two of plaintiffs’ tracts, and no utilities are presently available to any of their tracts included in the district. One of their tracts is described as “rough land having little value for farming” and is rocky timber land with a creek running through it, and with a difference in elevation of from seventy to eighty feet. No submain or lateral sewers have been constructed from the main trunk sewer in the direction of any of the lands owned by plaintiffs. The main trunk sewer which was constructed lies generally in the east central portion of the district.
At the time of trial — in October, 1959 — aside from Hallmark Cards and Callery Chemicals, no other industrial development had taken place in the district. The Sperry Rest Home, located on a tract containing 16.667 acres, had made direct connections with and was using the main sewer, as was Hallmark Cards, located on a tract containing 24.09 acres. The Hallmark plant was constructed simultaneously with the sewer. The only other land connected with and using the sewer at the date of trial was the Callery Chemical plant which was served by a submain and lateral constructed northward from the main sewer. The volume of water used by the Hallmark and Callery plants and discharged into the main sewer reached a maximum of 1,900,000 gallons per month by each plant in 1959, as compared with an average family use of 7,000 to 8,000 gallons per month.
Although there was some evidence to the effect that certain tracts in the district had “increased in value” because of the construction of the main trunk sewer, no residential developments had, as of the tíme of trial, taken place, and such development was uncertain and problematical because of the high prices which owners were asking for their land and the fact that “people do not want to live near an industrial district.” In other words, future development is highly speculative. In addition, the evidence was to the effect that if and when all of the land in the district is sewered by the construction of submains and lateral sewers the cost thereof would be about $1,200 per acre.
While it must be conceded there is some testimony to the effect that in arriving at their finding of “equal benefit” the county commissioners exercised their “respective” judgments, it is quite apparent (and as found by the trial court) their opinions were predicated, for the most part, upon the advice and opinions of the engineers employed to plan and supervise the construction of the main sewer, which advice and opinions were based upon the fact the sewer was of a size (24 to 30 inches) sufficient to serve the entire area included in the district.
At the conclusion of the trial the court made extensive findings of fact which leave no doubt as to its honest and conscientious approach to the problem. It is noted, however, the court did not find that all land within the district was benefited equally — it merely found that plaintiffs’ land was benefited by the construction of the main trunk sewer. It further found the action of the board of county commissioners could not be described as arbitrary, unjust or discriminatory, and that the finding that all property in the district was benefited equally was authorized by statute and therefore lawful, and that the assessment on a per-acre basis was legally made.
In support of the trial court’s judgment defendants contend that a matter of this kind is administrative in character, rather than judicial; that the determination of the question by the body authorized to act in the premises is conclusive on the property owners and on the courts unless it is palpably arbitrary or grossly unequal; that benefits from installation of a sewer system arise not only from its use but from an availability for use and that the construction of a sewer benefits real property just as does paving of streets and the laying of mains; that from the facts of this case it is clearly shown that the sewer itself is of equal benefit to all of the land in the district because all of the sewers, submain and lateral, that will be built in the area will have no outlet except the main trunk sewer in question; that from an engineering standpoint it therefore results in equal benefit, and finally, that findings by a trial court, if supported by substantial evidence, are binding on appeal.
The cases of Alber v. Kansas City, 138 Kan. 184, 25 P. 2d 364, and Johnson County Comm'rs v. Robb, 161 Kan. 683, 171 P. 2d 784, were mentioned by the trail court in its memorandum decision and are discussed in the briefs. Because of factual dissimilarity, however, they are of doubtful authority on the question here presented.
As abstract academic propositions, the correctness of defendants’ contentions perhaps may. be conceded. It also is conceded that ordinarily courts do not, and should not, “second guess” administrative bodies, such as a board of county commissioners, in a matter of this kind. On the other hand, while the right of the legislature to enact the above-quoted provision pertaining to assessment on an area basis is not questioned — it by no means follows that the board’s finding of an equality of benefits is conclusive — for whatever method may be adopted for the apportionment and assessment of benefits from special improvements, it must be just and equitable, and if palpable injustice results from its application equity will step in and grant relief. (Railroad Co. v. Abilene, 78 Kan. 820, syl. 6, 98 Pac. 224.)
As before mentioned, the trial court, in upholding the finding by the board, concluded only that plaintiffs’ land was “benefited” by the construction of the main trunk sewer — it did not find that all land within the district was benefited equally, which, under the statute, is a condition precedent to the assessment as made by the board. The court also found that the prospect of early residential development in the district was “uncertain,” but that it could not be said that such was improbable — thus lending weight to plaintiffs’ contention that such finding is equivalent to finding that any benefits to their land are contingent, remote and speculative, as contrasted to benefits which are actual and real.
In order to illustrate the discrimination and unreasonableness of the assessment made pursuant to the finding by the board of “equal benefits,” we mention two examples urged by plaintiffs in their brief:
The rough, rocky and unimproved forty-acre Hurley tract, only a few acres of which could be cultivated, and not adapted to industrial use, and with only a remote and speculative possibility of future residential development, located one and one-half miles from the trunk sewer, and unable to make use of sewer facilities until water is provided and intervening tracts developed and long laterals constructed at a high cost, was assessed on the same per-acre basis as the smooth and level 16.667-acre Sperry Rest Home Tract, which was intercepted by the main sewer. To this sewer a connection already had been made by Sperry, and it also would be immediately available to serve the residential lots into which the remainder of the tract had been platted and subdivided. Both the Sperry and Hurley tracts were assessed at the rate of $84.52 per acre, the total assessment on the Sperry tract amounting to $1,408.63, whereas the total assessment on the Hurley tract amounted to $3,380.64. In the light of physical facts, and in the very nature of things, the assessment on the Hurley .tract, by comparison, is palpably so unjust and excessive as to amount to virtual confiscation.
Hallmark Cards owns two tracts aggregating 24.09 acres. It constructed thereon, simultaneously with the construction of the sewer, a large plant. As of the time of trial, this plant, in connection with its extensive operations, was using and discharging into the sewer an average of more than 1,500,000 gallons of water per month. By the construction of a comparatively short connection to the main sewer there became available to the Hallmark plant complete sewer facilities for which the total assessment was only $2,205.02. On the other hand, an assessment of $6,761.28 was levied against the eighty-acre Glathart tract, despite the fact it was a rough, unimproved, inaccessible, unproductive and heavily wooded tract, a mile distant from the sewer, not adapted to industrial use, and with no need for sewer facilities either then or within the foreseeable future. By comparison, the unjustness and unreasonableness of these two assessments is obvious.
In conclusion — we hold that the finding of the board of county commissioners that all lands within the district were “benefited equally” simply is contrary to the facts; that the assessment on that basis of all lands within the district was therefore unjust, unreasonable, discriminatory and grossly disproportionate to the benefits received, and that the trial court erred in denying injunctive relief.
The judgment is therefore reversed. | [
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The opinion of the court was delivered by
Wertz, J.:
This was a replevin action brought by Ronald N. Jordan, plaintiff (appellee), against Felix G. Kancel, Sr., defendant (appellant), to recover twenty-six television sets owned by plaintiff, or, in the alternative, the value thereof. From a judgment in favor of the plaintiff, the defendant appeals, and plaintiff cross-appeals from that portion of the judgment fixing the value of the property.
The undisputed facts in the case are: Plaintiff Jordan was the sole proprietor of a Wichita television and appliance store which handled General Electric products. The television sets which were the subject of this action were on the floor of plaintiff’s store under a trust receipt or floor plan mortgage with the General Electric Credit Corporation. Copies of the trust receipts were filed of record in the office of the register of deeds of Sedgwick county. Defendant Kancel operated a motel in the city of Wichita. At the time in question, Albert Brinkman and Daverne Rudiger were doing business in Wichita as a partnership under the name of General Electronics, a television service and repair shop. They were not in the business of selling either used or new television sets and had no franchise to do so. They had done repair and service work on television sets for defendant Kancel on many occasions.
In the fall of 1959, Brinkman contacted Jordan for the purpose of renting new television sets from him. Jordan agreed to rent some twenty-six television sets to Brinkman at the rate of $20 a month each. However, Brinkman had no authority to sell the sets and was instructed not to do so; but he did have the right to, in turn, lease or rent the sets to others in the community, and they remained the property of Jordan. Upon the delivery of each set to Brinkman, Jordan prepared an invoice giving the set a number and designating it for rental. Brinkman paid the monthly rental on the sets for several months, and, then, without title to them, authority from or knowledge of the plaintiff, purported to sell the sets to defendant Kancel for use in the twenty-five new units of his motel. Defendant paid Brinkman $100 each for the twenty-two seventeen-inch television sets and $110 each for the four twenty-one-inch television sets. Defendant paid no sales tax on his claimed purchase, and did not check with anyone to see if General Electronics, composed of Brink-man and Rudiger, was franchised or had title to the sets or authority to sell them. Thereafter, Brinkman absconded with the money.
Defendant Kancel had been previously contacted several times by Mr. Clay, a contract salesman employed directly by the General Electric Corporation, in an attempt to sell television sets to defendant as a motel operator. Clay quoted the seventeen-inch sets direct from the factory at a special price of $134.50 each, which was less than General Electric sold them to its franchised dealers. Clay testified that defendant subsequently told him he had purchased television sets elsewhere but was reluctant to say he had purchased them from Brinkman.
A few days after Brinkman's disappearance, Jordan contacted Kancel to inquire about the rental television sets and was advised by him that he had bought them from Brinkman; whereupon, Jordan filed this action.
The defendant contends that due to the nature of the transaction and the circumstances thereunder he was a bona fide purchaser for value of the television sets. The plaintiff contends that Brink-man had no authority to sell the television sets and could convey no title thereto.
The rule of law is well stated in 2 Williston on Sales (Rev. Ed.), § 313, pp. 244, 245:
“Although intrusting possession to another may lead an innocent third person to believe the possessor is the owner, no court has ever gone so far as to hold that the mere intrusting with possession would preclude the owner from asserting his title. If the owner of goods is responsible for or cognizant of no other deceptive circumstances, it is an entirely proper thing for him to intrust another with the goods either for the advantage of the owner or of the possessor, and the law has never attempted to debar the owner from so doing. He may intrust his goods to another to be repaired or he may lend them to another for the latter’s use or he may lease them for hire, and still reclaim them from one who has innocently given value for them to the bailee.” (Emphasis supplied.)
It is a general rule with regard to personal property' that title, like a stream, cannot rise higher than its source (46 Am. Jur., Sales, § 458, p. 620).
It was stated in Mitchell v. Hawley, 83 U. S. 544, 550, 21 L. Ed. 322, 324, that no one in general can sell personal property and convey a valid tide to it unless he is the owner or lawfully represents the owner. Nemo dat quod non habet. Persons, therefore, who buy goods from one not the owner and who does not lawfully represent the owner, however innocent they may be, obtain no property whatever in the goods, as no one can convey in such a case any better tide than he owns, unless the sale is made in market overt, or under circumstances which show that the seller lawfully represented the owner. See also 46 Am. Jur., Sales, § 458, p. 621; 77 C. J. S., Sales, § 295, pp. 1104, 1105; 2 Williston on Sales (Rev. Ed.), § 311, p. 241; Brown on Personal Property (2d Ed.), § 71, pp. 241, 242.
In Farmers Grain Co. v. Atchison, T. & S. F. Rly. Co., 121 Kan. 10, 13, 245 Pac. 734, we stated that one who purchases or takes possession of property from a person who has no right or authority to dispose of it is guilty of a conversion and liable for its value.
Under the facts in the instant case, the defendant cannot be considered a bona fide purchaser in good faith without notice. The evidence discloses that he made no investigation whatsoever con cerning the television sets, with the exception of a vague question to his attorney and to a bank; that he paid no sales tax on the purchase; that he received no invoice or bill of sale from Brinkman; that he knew that Brinkman was a television repair and service man and not a television dealer, that the television sets were not sold in the usual course of business and that the price paid was far below the factory price for the same. Moreover, even if defendant had been a purchaser in good faith without notice, under the aforementioned authorities he obtained no title or right to the sets by reason of his purchase from Brinkman, who was not the owner nor was he authorized to sell the sets.
Defendant contends plaintiff is estopped from asserting ownership of the property. Suffice it to say, defendant neither pleads estoppel nor is there any evidence in the record justifying the application of the doctrine, had it been pleaded.
Defendant next contends that he was denied a jury trial. The pleadings presented issues of fact, and it was therefore error for the trial court to refuse defendant’s demand for a jury trial. However at the trial the evidence adduced by the parties was not controverted in any essential particular and no issue of fact was presented. Under the evidence in the case it became a question of law as to whether Brinkman could convey title to the defendant. The evidence established plaintiff’s cause of action so clearly as to require a directed verdict for plaintiff if a jury trial had been granted, and the denial of a jury trial in the first instance did not result in prejudicial error. (Wheat Growers Ass’n v. Goering, 123 Kan. 508, 256 Pac. 119; Western Fire Ins. Co. v. Phelan, 179 Kan. 327, 332, 295 P. 2d 675.)
Plaintiff’s cross-appeal has been duly considered and found to be without sufficient merit to authorize a modification or reversal of the judgment.
The judgment of the trial court is affirmed. It is so ordered. | [
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|
The opinion of the court was delivered by
Price, J.:
This is a workmen’s compensation case, and the appeal is by claimant from an award made pursuant to a hearing under the review and modification statute (G. S. 1959 Supp. 44-528).
On August 2, 1955, claimant suffered a heatstroke while working as a laborer for respondent landscape company. Roth the commissioner and the district court held that his injury was compensable, and the original award, dated July 24, 1956, in pertinent part, was:
“. . . for total general disability for an indefinite period not to exceed 415 weeks payable at the rate of $26.40 per week, subject to review and modification as provided by law . . .”
The employer and its insurance carrier appealed, and the only question presented was whether, under the facts and circumstances shown,, injury resulting from a heatstroke was compensable. This court held that it was and affirmed the award (Taber v. Tole Landscape Co., 181 Kan. 616, 313 P. 2d 290).
Payments under the award were made as they became due. On May 20, 1960, claimant filed an application for review and modification under the above-mentioned statute, and also an application for a lump-sum payment of the balance due under the July, 1956, award (G. S. 1959 Supp. 44-531). The application for review and modification stated in part:
“Comes now the claimant and respectfully makes application that the workmen’s compensation award heretofore entered on the 24th day of July, 1956, be reviewed and modified from a temporary running award to a permanent partial disability, for the reason that, as the record indicates in all prior hearings, the claimant would reach maximum recovery within eighteen (18) months from the date of injury, and claimant is no better off now than he was at the date of hearing, no recovery having been made, and is therefore entitled to a permanent total disability award.”
On oral argument of this appeal counsel for claimant stated that the word “partial” was inadvertently and mistakenly inserted in the application, and that the purpose of the application was to have the original award on the basis of temporary total disability modified and changed to permanent total disability. Be that as it may — and disregarding technicalities — it is apparent from the record that the hearing of July 12, 1960, was conducted by the commissioner and the parties in conformity with the procedure outlined by the review and modification statute.
Considerable evidence was introduced at that hearing, and on September 9, 1960, the commissioner filed his findings and award as follow:
“Stipulations.
“The parties stipulated that the respondent and insurance carrier have supplied the claimant with professional care at an expense in excess of $2,500; that 255 weeks of compensation have been paid the claimant and that the payments on the existing award are current.
“Summary of the Evidence.
“Dr. Harold O. Bullock was called as a witness by the claimant. He testified he examined claimant on June 24, 1960, and from that examination concluded that claimant was still suffering total permanent disability by reason of weakness and atrophy of the muscles of the lower legs due to a nerve injury.
“Claimant testified that he was not able to do manual labor as he cannot be on his feet for any length of time. He testified that since the accident he has received a Bachelor’s Degree from tire Kansas State College at Pittsburg and will receive a Master’s Degree from that institution late this summer; that he has been employed as a public school teacher at Golden City, Missouri, at a salary of $3,900.00 per year.
“Claimant further testified that he owes bills in the approximate amount of $1,000.00. He stated that by reason of the job at Golden City he will be obliged to move his family there and in addition to the furniture that he now has, he will need a stove, refrigerator and washer. He further testified that by reason of the inability to get around, he finds it necessary to have another automobile, for the one he has now is some seven years old and beyond repair. The claimant and his wife are also expecting a child the first of the year and must anticipate the incidental expense thereto.
“Findings.
“This claim presents an interesting question of claimant having recovered his earning capacity yet having serious and permanent disability. In other words, this claim involves the definition of the meaning of ‘total permanent disability.’ A reading of the cases of our Supreme Court reveals that this term means the loss of ability to do gainful work as well as total loss of earning capacity. It does not mean as contended by claimant the inability to do the work claimant was doing at the time he was injured. That is to say, the meaning is much broader than claimant contends. Claimant undeniably has qualified himself as a public school teacher at a salary of $3,900.00 per year. This does not preclude the claimant, however, from partial permanent disability since disability includes both destruction of wage earning capacity and physical disability. In other words, a common sense approach recognizes the difficulties of a cripple in the labor market. Therefore, by reason of claimant’s condition in his lower legs the Examiner feels and so finds that even though claimant’s earning capacity has been rehabilitated he nevertheless is entitled to continue to have an award for 66% percent permanent partial disability for the remaining 160 weeks.
“The Examiner further finds that the claimant in rehabilitating himself and arranging to handle this job as a public school teacher has and will become indebted in an amount equal to the amount due and owing under the award as modified by these findings and that the respondent and insurance carrier should, therefore, pay the remaining amount due in the sum of $2,814.40 to him in a lump sum forthwith, less 5 per cent as provided in 44-531 of the 1959 Supplement to the General Statutes of Kansas.
“Obder.
“Wherefore an Order of compensation is hereby made that the existing award in favor of the claimant, Marion A. Taber, and against the respondent, William Tole d/b/a Tole Landscaping Co., and its insurance carrier, Central Surety and Insurance Co., be modified and the degree of disability reduced from total to 66% per cent and be considered permanent in character. This amount in the sum of $2,814.40 is ordered paid the claimant in a lump sum forthwith, less 5 per cent as provided in 44-531 of the 1959 General Statutes of Kansas.”
Roth claimant and the employer appealed to the district court, and on November 30,1960, the court approved and adopted the findings and award of the commissioner and entered judgment accordingly. Claimant has appealed. The employer and its insurance carrier have not cross-appealed.
One of claimant’s contentions is that because of his “limited” application for review and modification, the extent of his disability— that is, the quality of totality — was not before the court. We do not agree. The review and modification statute provides that the commissioner may modify such award upon such terms as may be just by increasing or diminishing the compensation, and, under certain circumstances, may cancel the award and end the compensation. An award of compensation made pursuant to the provisions of the review and modification statute constitutes a new award (Brewington v. Western Union, 163 Kan. 534, 183 P. 2d 872, syl. 5), and on appeal to the district court the same legal principles control that apply to an original hearing in a compensation case (Jones v. Western Union Telegraph Co., 165 Kan. 1, 8, 192 P. 2d 141).
We do, however, believe there is merit to another contention made by claimant, which, although variously stated, points to the fact the court erred in basing its findings of 66% per cent permanent partial disability on the fact claimant had secured a teaching position paying him $3,900 per year. As before stated, the court approved and adopted the findings of the commissioner, quoted above, and from those findings it is readily apparent the basis for modifying and reducing the degree of disability from total to 66% per cent was the fact claimant had rehabilitated himself to the extent of obtaining an education and securing a teaching position. This, we believe, was error.
because of the disposition being made of this appeal it is unnecessary to detail the evidence and our discussion will be confined to the point of law involved and the cases relied on by claimant for reversal.
In Sauvain v. Battelle, 100 Kan. 468, 471, 164 Pac. 1086, it was said that when one is totally or partially incapacitated for hard manual labor he is not to be denied compensation because he obtains employment, even at better wages, at a task which he is physically able to perform. To the same general effect is Raffaghelle v. Russell, 103 Kan. 849, 851, 176 Pac. 640. In Daugherty v. National Gypsum Co., 182 Kan. 197, 318 P. 2d 1012, it was said that the criterion for compensation under the statute is disability of the workman resulting from personal injury by accident arising out of and in the course of his employment; that disability is the inability of the workman to perform work he was able to perform prior to his injury, and is the test by which compensation is measured; that the whole theory underlying the compensation act is that by reason of his accident the employer is required to compensate the workman for loss resulting by reason of his inability to perform the same labor he was able to perform prior to the injury, and that the rule is based upon the fact that partial general body disability is a definite loss to the injured workman and is a deterrent to his obtaining and retaining work in the open labor market. In Smith v. Jones, 185 Kan. 505, 345 P. 2d 640, it was held the trial court erred in concluding that an employee was not entitled to receive any more compensation at all because it did not believe it proper for a workman to draw full compensation benefits and still work on a job and draw full pay.
While here the findings do not specifically say so “in so many words” — it is very obvious the "trial court’s reduction of the degree of disability from total to 66% per cent was based on the fact claimant had secured the teaching position. In the Daugherty case, above, it also was said that permanent partial disability of an injured workman, based upon substantial medical testimony, is compensable notwithstanding he may earn as much or more after his injury in the same or other employment. Our conclusion is that the court placed too much emphasis on the fact claimant had secured employment in another line of work and did not fully consider the evidence relating to his inability to perform work he was able to perform prior to his injury. The judgment is therefore reversed with directions to the trial court to proceed in accord with the conclusions herein announced. | [
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinaiy Administrator against the respondent, Stan M. Kenny, of Wichita, an attorney admitted to the practice of law in Kansas in 1997.
On January 23, 2009, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). On February 13, 2009, the respondent filed an answer to the formal complaint. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on March 31, 2009, where the respondent was both personally present and represented by counsel. The hearing panel determined that respondent violated KRPC 4.4 (2008 Kan. Ct. R. Annot. 558) (respect for rights of third persons); 8.3(a) (2008 Kan. Ct. R. Annot. 585) (reporting professional misconduct); 8.4(d) (2008 Kan. Ct. R. Annot. 586) (engaging in conduct prejudicial to the administration of justice); and 8.4(g) (engaging in conduct that adversely reflects on fitness to practice law). Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“2. In March, 2006, Craig and Yvonne Bucl came to Tim R. Karstetter requesting that he prepare an insurance funded buy/sell agreement. Mr. and Mrs. Bucl had been advised by Heath Hampton that an insurance funded buy/sell agreement was necessaiy. Mr. Karstetter prepared the insurance funded buy/sell agreement for Mr. and Mrs. Bucl.
“3. Later, Mr. and Mrs. Bucl apparently questioned the need for the insurance funded buy/sell agreement. Mr. and Mrs. Bucl retained the Respondent to review this issue. After meeting with Mr. and Mrs. Bucl, the Respondent sent a letter to Mr. Karstetter that provided:
‘Sometime last March, 2006, Mr. & Mrs. Bucl approached your office, possibly with the assistance of Mr. Heath Hampton, requesting advice concerning a buy-sell agreement for their corporation. Since that time, Mr. and Mrs. Bucl have questioned the need for die buy-sell agreement, since they are married, and are also the only shareholders in the corporation.
‘To be frank, Mr. Karstetter, my clients believe they were mis-advised, and intend to file a complaint with the state Disciplinary Administrator concerning your part in drafting the buy-sell agreement. However, if you were to simply refund your fee to diem, in care of this office, I believe they may relent, and not file anything with Director Hazlett.
T will need to hear from you no later than Monday, January 22, 2007, if tíiis is acceptable to you. If we don’t hear from you, we will assume that you would like to address this matter through the Office of the Disciplinary Administrator. If you have any questions, please do not hesitate to contact my office.’
“4. On January 17, 2007, Mr. Karstetter wrote to the Respondent. Mr. Karstetter’s letter provided:
T was quite surprised to receive your letter of January 12, 2007. You had given me a deadline of January 22 to respond, but your envelope was not postmarked until January 16, and I did not receive it until today.
‘The facts stated in your letter are not exactíy accurate. Mr. and Mrs. Bucl came to me, after being advised by Heath Hampton that they needed to have insurance funded buy/sell agreement. My notes reflect that Mr. Hampton was either a CPA or a Financial Advisor, or both. Mr. and Mrs. Bucl did not consult me regarding the advisability of a buy/sell agreement, but simply to have one prepared. My notes also reflect that they already had purchased the insurance for such a buy/sell agreement. Therefore, I don’t feel in any fashion that I ‘misadvised’ them when I didn’t give them any advice in this regard.
‘Mr. and Mrs. Bucl were very pleasant while we were working on this agreement. I enjoyed meeting them. I have even prepared minutes for their corporation after the buy/sell agreement was prepared. They never indicated any dissatisfaction to me at any time.
1 would also point out to you that if you believe I have committed an ethics violation, it is your duty to report that to the disciplinary administrator’s office.’
“5. On January 18,2007, the Respondent responded to Mr. Karstetter’s letter. The Respondent’s letter provided:
‘Please excuse the tardiness of my previous letter. I wasn’t aware you may need more time to respond.
. ‘The situation is, I don’t know if you have violated any ethics rules. I have simply passed along what my clients intend, with their perspective of the sit uation. It appears Mr. Hampton may not have been acting in their best interest, and, from appearances, it seems you may have assisted him.
‘Personally, I do not like responding to ethics investigations. My hope was to avoid one for you. If my clients’ fee is not returned, it is likely they will initiate a complaint. If their fee is returned, I may be able to persuade them otherwise. My letter was a courtesy to you, not an allegation.
‘Nor do I need to be challenged to file ethics complaints on my own. In this case, I don’t think I know enough to file the complaint. My point is, one will be filed, unless I can broker a settlement between you and the Bud’s [sic]. I’m simply trying to save you some time and some money.’
On January 26, 2007, Mr. Karstetter wrote to the Disciplinary Administrator, enclosing the correspondence he received from and sent to the Respondent. As a result, the Disciplinary Administrator docketed a complaint against the Respondent.
“6. On January 23, 2009, the Disciplinary Administrator filed a Formal Complaint. The Respondent timely answered. In his Answer, the Respondent stipulated to the facts and the rule violations alleged in the Formal Complaint.
“CONCLUSIONS OF LAW
“1. Based upon the Respondent’s stipulation and the above findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 4.4, KRPC 8.3, KRPC 8.4(d), and KRPC 8.4(g), as detailed below.
“2. KRPC 4.4 provides:
‘In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.’
The Respondent’s letters to Mr. Karstetter had no substantial purpose other than to burden Mr. Karstetter and coerce a refund of the attorney fee. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 4.4.
“3. KRPC 8.3(a) provides that ‘[a] lawyer having knowledge of any action, inaction, or conduct which in his or her opinion constitutes misconduct of an attorney under these rules shall inform the appropriate professional authority.’ In this case, the Respondent stated that Mr. Karstetter ‘mis-advised’ the Bucls and that, as a result, the Bucls were going to file a complaint unless Mr. Karstetter returned the attorney fees paid by the Bucls. Because the Respondent had knowledge of what he perceived to be a violation of the Kansas Rules of Professional Conduct, the Respondent had an obligation to report Mr. Karstetter to the Disciplinary Administrator. The Respondent did not report Mr. Karstetter’s conduct, rather, he made a threat to report. The Hearing Panel concludes that the Respondent violated KRPC 8.3(a).
“4. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). In this case, in writing the letters to Mr. Karstetter, the Respondent engaged in ‘conduct that is preju dicial to the administration of justice.’ As such, the Hearing Panel concludes that tire Respondent violated KRPC 8.4(d).
“5. It is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’ KRPC 8.4(g). Again, writing the two letters to Mr. Karstetter and demanding that the Bucls attorney fees be returned in exchange for refraining from filing a disciplinary complaint, adversely reflects on the Respondent’s fitness to practice law. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(g).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to the legal profession.
“Mental State. The Respondent negligently violated his duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused injury to the legal profession.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. On November 28, 2005, the Respondent entered into the Attorney Diversion Program for having violated KRPC 5.3 and KRPC 5.5. The Respondent complied with all the terms and conditions contained in the agreement. Thereafter, the case was dismissed.
“Dishonest or Selfish Motive. The Respondent’s conduct appears to have been motivated by dishonesty or perhaps, selfishness.
“Substantial Experience in the Practice of Law. The Respondent was admitted to the practice of law in the State of Kansas in 1997. At the time the Respondent engaged in the misconduct, the Respondent had been practicing law for 10 years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstance present:
“The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The Respondent fully cooperated during every stage of the disciplinary investigation and prosecution.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘6.23 Reprimand is generally appropriate when a lawyer negligently fails to comply with a court order or rule, and causes injury or potential injury to a client or other party, or causes interference or potential interference with a legal proceeding.
‘7.3 Reprimand is generally appropriate when a lawyer negligently engages
in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.’
“RECOMMENDATION
“The Disciplinary Administrator recommended that the Respondent be censured and that the censure be published. The Respondent recommended that his plan of probation be adopted.
“The Respondent requested that he be placed on probation, pursuant to Kan. Sup. Ct. R. 211(g)____
“While it appears that each of the provisions of Kan. Sup. Ct. R. 211(g) has been satisfied, probation is not warranted in this case. At the hearing, the Respondent clearly expressed his understanding of his misconduct. In the opinion of the Hearing Panel, probation is not necessary. A published censure is sufficient discipline for the misconduct. However, the Hearing Panel has carefully reviewed the Respondent’s probation plan and the Hearing Panel urges the Respondent to comply with the terms and conditions of his plan of probation on his own.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be censured by the Kansas Supreme Court. The Hearing Panel further recommends that the censure be published in the Kansas Reports.
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009); see Supreme Court Rule 211(f) (2008 Kan. Ct. R. Annot. 313).
The respondent did not take exception with the panel’s final hearing report set forth above. Thus, the hearing panel’s final re port is deemed admitted. Supreme Court Rule 212(c) (2008 Kan. Ct. R. Annot. 327).
We conclude the panel’s findings of fact are supported by clear and convincing evidence and support the panel’s conclusions of law, and we adopt those findings and conclusions. With respect to the discipline to be imposed, the panel’s recommendation that the respondent be censured is advisory only and shall not prevent the court from imposing a different discipline. Supreme Court Rule 212(f).
During oral argument, the respondent made reference to his own depression and his attempts to address this problem. The respondent submitted the following plan of probation to the hearing panel:
“1. Respondent will be placed on probation for a period of twelve (12) months to begin on a date specified by the Disciplinary Administrator and Review Committee.
“2. The Respondent shall attend six (6) hours of Ethics: Continuing Legal Education, and provide proof to the Disciplinary Administrator. This shall be performed during the twelve (12) months of probation.
“3. The Respondent will continue counseling with Connie Buey, and will provide periodic reports to the Disciplinary Administrator regarding progress, attendance and any other information that they so require.
“4. Tlie Respondent shall also continue treatment for his depression with his primary doctor Dr. Elsie Steelberg. This shall continue until treatment is deemed no longer necessaiy by Dr. Steelberg. Dr. Steelberg shall notify the Disciplinary Administrator in the event that the Respondent discontinues treatment against the recommendation of Dr. Steelberg during said probation period.
“5. The Respondent will write to the Disciplinary Administrator’s office and detail how he could have avoided the problem that occurred in this case.
“6. The Respondent will send a letter of apology to the attorney, Tim R. Karstetter.
“7. The Respondent will also meet with the Depression Committee of the Wichita Bar Association, as they do have monthly meetings. The Respondent has requested that David Hiebert (S. Ct. No. 07585) sponsor him regarding this. Mr. Hiebert will report to the committee any lack of attendance or any problems with the Respondent communicating with him.
“8. The Respondent shall attend any required scheduled meetings with the Office of the Disciplinary Administrator. The Respondent will provide information as requested by the Office of the Disciplinary Administrator in a timely manner.
“9. The Respondent shall pay any probation fees on a timely basis for the duration of probation.
“10. The Respondent will not violate these terms of probation or provisions of the Kansas Rules of Professional Conduct. In the event that the Respondent violates the terms of probation, or any of the provisions [of] the Kansas Rules of Professional Conduct, the Respondent shall immediately report such violations to the Disciplinary Administrator.
“11. The Respondent will comply with Kansas Rules of Professional Conduct. Additionally the Respondent shall cooperate with the Disciplinary Administrator in providing information regarding any investigations regarding his work as required by Kansas Supreme Court Rule 207.
“12. The Respondent shall notify the Disciplinary Administrator within fourteen (14) days of any changes in his address.
“13. The Respondent is putting the probation plans into effect prior to the hearing on the [complaint] by attending the required meetings and therapy, and ongoing treatment for his depression, in addition to signing up for additional CLE in Ethics.
“14. The Respondent would further allege that this misconduct can be corrected by probation, and placing him on probation is in the best interest of the legal profession and the citizens of the State of Kansas.
“15. David Hiebert (S. Ct. No. 07585) will supervise the practice of the Respondent during his probationary period, or for any length of time the Roard finds appropriate.”
The panel did not believe the plan submitted was necessary but encouraged the respondent to abide by the terms of his plan. We agree with the panel that published censure is the most appropriate discipline for the violations set forth above. In light of the respondent’s presentation, we would strongly suggest and encourage the respondent to abide by the terms of his probation plan in his practice of law in this state.
A minority of the court concluded that probation according to the plan submitted was the most appropriate disposition of the respondent’s case. All members of the court recognize that that the structure provided in the respondent’s probation plan would be beneficial to the respondent in his practice of law in Kansas.
Conclusion and Discipline
It Is Therefore Ordered that the respondent Stan M. Kenny be and he is hereby disciplined by published censure in accordance with Supreme Court Rule 203(a)(3) (2008 Kan. Ct. R. Annot. 266) for violations of KRPC 4.4; 8.3(a); and 8.4(d) and (g).
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The Connecticut Fire Insurance Company appeals from a judgment obtained by D. A. Dabney based upon an insurance policy which covered a herd of plaintiff’s cattle, insuring them against loss by fire or lightning, thirty head of which were destroyed by fire. The policy was issued when the cattle were being kept in Montgomery county, Kansas, and later plaintiff shipped them to the Kansas City stockyards for sale, employing Clay, Robinson & Company as his agents to negotiate a sale, but before the sale was effected cattle of the value of $2,153 were burned. Defendant contested the claim of plaintiff under the policy upon several grounds. Ope was that there had been a change of possession of the cattle without the consent of the insurance company, in violation of a provision of the policy to the effect that if there was a change of title or possession, or if the interest of the insured became other than unconditional unencumbered sole ownership without agreement of the insurer, the policy would be void.
Placing the cattle in the hands of the commission merchants for sale, without the knowledge or consent of the insurance company, did not avoid the insurance. There is no claim that there was a change of title, and to temporarily turn them over to the commission merchants that the plaintiff had employed to sell them was no more a change of possession than if he had put them in charge of persons that he had employed to transfer them from one pasture to another. So far as the insurance company was concerned, the possession of the commission mer chants, under the circumstances, was the possession of the plaintiff. We are not concerned with the right of possession of a commission merchant or factor to secure payment of commissions and charges incident to a sale. In such a case the possession of the commission merchant would become adverse, something quite unlike that involved in this controversy. The cases cited by defendant relating to the liens of commission merchants, carriers, and brokers do not apply here, nor do the cases relating to possession taken under process of law. Temporary holding of possession by an agent of the owner does not come within either the letter or spirit of the insurance contract. The risk or moral hazard of the insurance company is not increased by the transaction. A change which will avoid a policy must be such as is calculated to make the owner less watchful in caring for the insured property, and the nominal and temporary possession of the commission merchant was not of s,uch a character as would increase the temptation of the owner to defraud or destroy, nor make him less careful in guarding the property against loss.
There is a contention that there was a violation of the provision of the policy which stipulated that if the assured should hereafter make or procure any other contract of insurance, it would operate to avoid the policy. It appears that the Kansas City Live Stock Exchange, for its own purposes, had taken out a policy in another company for a five-year period on all live stock that came into the exchange, the premium being ten cents per car, and that this was charged to the shippers in bills rendered to them by the exchange. This did not operate to avoid the policy, as the added insurance was not procured by the plaintiff, and he had no knowledge that the exchange had taken the insurance until after his cattle were burned. It is the making or procuring of another contract of insurance by the insured which invalidates the policy in question, and not the contracts that other parties may make. Another reason . why the defendant’s contention fails, is that the policy taken out by the exchange itself provided that it should not cover .live stock on which there was specific insurance; and, as plaintiff’s cattle were so insured, they were not included within the insurance taken out by the exchange.
The policy contained a provision that—
“This company shall not be liable for any loss or damage caused by fire, if the risk be increased by any means within the knowledge of the assured . . . unless provided by agreement indorsed hereon.”
The defendant set up as a defense that the cattle had been shipped from a pasture in Montgomery county, where they were when the policy was issued, without the consent of the defendant, and placed in the pens of the Kansas City Stock Yards Company, and that the hazards- of loss by fire were much increased by the transfer. The court ruled that, in view of another provision of the policy, the transfer, of the cattle did not constitute a defense. There was no error in the ruling, as the conditions of the policy relating to the location of the cattle were that they were insured to the extent of $3,000 while located “anywhere,” and not “elsewhere.” There was no stipulation in the policy that the cattle should be kept in a particular place during the insurance period; and, in terms, the insurance was made to follow them wherever they might be taken or kept. No change of location could increase the hazards contemplated by the parties nor remove the cattle from the protection provided in the policy. The proposed defense being wholly outside of the contract of insurance, it was rightly stricken from the answer, and the offered testimony in support of it was correctly excluded from the jury.
Judgment affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued to enjoin the defendant from practicing law at Caldwell, by reason of a contract to refrain therefrom, which was made when the defendant sold to the plaintiff his law library and law business. The contract was in writing, and the plaintiff has paid the purchase price of $2,500. The defendant admitted that, to some extent at least, he had practiced law at Caldwell, but contended that the written contract had been abrogated by a subsequent verbal arrangement. He also claims that the original contract was void because when made the plaintiff had not been admitted to practice.
We see no reason why a law student who is about to be admitted to practice may not purchase the library and business of a practicing attorney. The fact that in this instance the purchaser was refused admission upon his first examination does not destroy or impair his rights under the contract which the defendant made with him, and for which he was paid in full, the plaintiff in the meantime having been admitted.
The defendant, while claiming that the written contract was superseded by a verbal agreement, nevertheless testified, among other things—
“By the Court: Q. Why didn’t you intend to practice in Caldwell? A. Well, bceause I had a regard for this agreement with Mr. Thorn. I didn’t want to go there and open up in competition; I had regard for that — always have had; I didn’t want to do that; I didn’t want to open up there; I did n’t intend to; I did n’t have a library nor any equipment.
“If you went to Caldwell and did n’t intend to go into practice, if you had regard for this contract, how do you claim now that the contract is abrogated? A. I had always thought it was abrogated; I had always thought that, but at the same time I had sold my law business to Mr. Thorn and I did n’t — I had strained every nerve I had to establish him and I wanted him to make good. I didn’t want to interfere with. I had that feeling there. I went over there — fact is I went back to Caldwell on account of other business arrangements that come to me depending on another oil well development down there.
“Q. You just said that you didn’t come back to Caldwell for the purpose of engaging in the law business, but that you were appointed district agent for some insurance company, but that incidentally you expected to take any law business that might come to you? . . . Didn’t you say that? A. I said that incidentally if anybody came to me with a law case I expected to take it.
“Q.. You have been doing that since you came back? A. To some extent.”
The plaintiff testified that no agreement was ever made between Mr. Dinsmoor and himself, outside of the written contract, and when the defendant was asked if the contract was abrogated,' he answered that nothing was said about it, that they simply formed a partnership.
The trial court came to the conclusion that the contract was not abrogated, and that it had been violated by the defendant, and whatever the difference in views between the parties may be, the record furnishes sufficient evidence to sustain the conclusion reached by the trial court. /
The judgment, therefore, is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
O. D. Kirk was appointed to appear and manage the defense of the estate pf Samuel H. Hoover, deceased, against a claim filed by E. G. Hoover, who was sole executor of the will of Samuel H. Hoover. Judgment was rendered in favor of E. G. Hoover, and O. D. Kirk appeals.
Sometime prior to July 11,1912, Samuel H. Hoover had been, the owner of 320 acres of valuable land near Wichita-. About that time, or prior thereto, he deeded the land to his children; 160 acres thereof to E. G. Hoover, the claimant in this action, and the remainder to his other children. The deed to E. G. Hoover was dated July 11, 1912, and a note dated on that day, due on or before May 1, 1918, for $16,000, was given by E. G. Hoover to his father, Samuel H. Hoover. That note was secured by a mortgage oh eighty acres of the land deeded to E. G. Hoover. On August 17, 1912, Samuel H. Hoover executed a will giving the remainder of his property to his children, E. G. Hoover, W. C. Hoover, Maude Wise, Bird Hoover, and Mabel Fenn, as though he had died intesfate. On July 15, 1913, Samuel H. Hoover executed and delivered to E. G. Hoover a note for $16,000 due four years and forty-five days after its date;. Concerning that note a witness, who was present at the time it was signed, testified substantially as follows:
“Exhibit ‘S’ being the note claimed to have been executed by S. H. Hoover to Ed Hoover, was exhibited to the witness, who testified that he had seen the note before. He said: ‘I went in the door, came off of the west porch. Ed was sitting at his desk writing. I asked him if he was making out a note for the money I borrowed. I owed him some money. S. H. Hoover was there in his presence.
“Q. Did he participate in that conversation? A. No.
“Q. Did he afterwards? A. Well, the note, with this piece of paper, was given to S. H. Hoover. Mr. S. H. Hoover took it in his room. When he took it in his room, it was not signed. He came back. He was gone two or three minutes, and said, ‘Here, Ed, that will do until I can get to town and fix things.’ Then he showed me the note. It was then signed. I saw the signature on it. I know the old gentleman’s signature, have seen him sign it. My judgment is it is his signature.
“The witness was then asked:
“Q. State what further was said. A. Well, Mr. Hoover said, ‘Here, Ed, this will fix things until I can get to town and fix things better.
“Q. State what he said? A. He told me he was giving Ed the note to offset the $16,000 note and mortgage on the place, which I knew was on the place, personally.”
There was evidence to show that, at the request of Samuel H. Hoover, E. G. Hoover had taken charge of the farm in 1900, when it was in a somewhat run-down condition, had cared for it, built it up, and made it pay, and that when he took charge of the farm he was more than twenty-five years old and was a professional baseball player.
1. The court found that “E. G. Hoover should have and recover of and from the estate of S. H. Hoover, deceased, the sum of $17,244.44 with interest at the rate of ten per cent per annum from June 10, 1918.” There was a general finding in favor of the claimant. That finding determined every controverted question of fact, on which there was evidence, in favor of the claimant. On evidence from which different persons might have reached different conclusions, that finding resolved those conclusions in favor- of the claimant. These principles have been declared so often that it is useless to cite authorities to support'them. It is only just to say, however, that O. D. Kirk is .not advancing any argument against these principles, but it is necessary to start with them in order to properly determine the questions that are presented.
2. It is argued that, as a gift, the claim is void. Many authorities áre cited to show that payment of a promissory note cannot be compelled when it is signed and delivered by the maker as a gift to the payee. It may be conceded that the principle contended for is correct, but the general finding of the court determined that the note was given for a valid consideration.
Under section 2040 of the General Statutes of 1915, “ali contracts in writing, signed by the party bound thereby, or his authorized agent or attorney, shall import a consideration.” The 'note was a contract in’ writing signed by Samuel H. Hoover and imported a consideration;.therefore, the burden was on O. D. Kirk to prove that the note was without consideration. (Gen. Stat. 1915, § 2041.) He did not prove that fact.
The record of the judgment in the probate court was introduced in evidence. That record contained the following recital :
“Thereupon it was stipulated and agreed by and between all of the parties in open court, that the jury should be discharged, and that the only question in controversy was whether or not the demand of the said E. G. Hoover was exhibited within due time, that if the court should find that said demand was exhibited within due time, that then and in that event the court should render judgment in favor of the claimant and against the estate for the full amount of said claim, it being agreed between all of the parties, that if said claim was exhibited within due time, as provided by law, that the same should be allowed against said estate,’ and that the only question to be determined was by the court as to whether or not the claim of the said E. G. Hoover against said estate had been exhibited within due time as provided by law.”
In C. B. U. P. Rld. Co. v. Shoup, 28 Kan. 394, the following language is found:
“An oral admission of a fact by an attorney during the trial of a cause binds his client, and such admission may be proved on a subsequent trial of the case. If from the language used at the time, or the surrounding circumstances, it appears that such admission was intended as a mere waiver of proof for the purposes of that trial only, that will be the whole scope of its force; but if it appears to have been intended as a general admission of the fact, it will be as binding as though made -upon such subsequent trial; and, where it is uncertain what was the scope and intent of the admission, the matter must be left to the jury for its determination.” (syl. ¶ 3.)
The rule there declared is supported by Crockett v. Gray, 31 Kan. 346, 2 Pac. 809; Railway Co. v. Pavey, 57 Kan. 521, 46 Pac. 967; Cornell University v. Parkinson, 59 Kan. 365, 53 Pac. 138; and Lyon v. Garrett, 77 Kan. 823, 92 Pac. 859.
Other evidence concerning the consideration for the note was introduced on the trial. A summary of a part of that evidence has been made.
From the presumption concerning the consideration, from the stipulation, and from other evidence introduced, the court was justified in concluding that there was sufficient consideration for the note.
3. It is argued that it is to be presumed that, when the mortgage note for $16,000 was given, all accounts and financial obligations existing between E. G. Hoover and his father were adjusted, and that, therefore, the $16,000 note given to E. G. Hoover was without consideration and was a gift. The presumption contended for is contrary to the presumption fixed by section 2040 of the General Statutes of 1915, and cannot prevail.
4. Another proposition presented is that where a fiduciary relation exists between a parent and child, and there is a transaction between the two resulting in a benefit to the child, the burden of proof is upon him to show fairness in the entire transaction. The principle contended for may be conceded, but the finding of the court determines the question against O. D. Kirk, and that finding is supported by evidence and must stand.
5. Kirk contends that the claim is barred by sections 4565 and 4590 of the General Statutes of 1915.- To properly discuss this contention, it is necessary to state some additional facts disclosed by the evidence. Samuel H. Hoover died on December 4, 1913. E. G. Hoover was appointed executor on Decern-ber 20, 1913, and gave bond as such executor on that day. He did not publish notice of his appointment until in April, 1917. A report filed by the executor, December 18, 1914, did not list the note in controversy as a demand against the estate. The claim on the note was filed for allowance on July 13, 1916, and was allowed by the probate court on April 18, 1917. At that time the estate had not been fully administered.
Was the claim of E. G. Hoover barred by either of the statutes mentioned? The answer to this question involves the construction of sections 4565, 4568, 4569, 4582, 4590, and 4592 of the General Statutes of 1915. These sections read as follows :
Ҥ 4565. All demands not thus exhibited within two years shall be forever barred, saving to infants, persons of unsound mind, imprisoned or absent from the United States, one year after the removal of their disabilities.
Ҥ 4568. Any person may exhibit his demand against such estate by serving upon the executor or administrator a notice, in writing, stating the nature and amount of his claim, with a copy of the instrument of writing or account upon which the claim is founded, and such claim shall be considered legally exhibited from the time of serving such notice.
Ҥ 4569. Every executor or administrator shall keep a list of all demands thus exhibited, classing them, and make return thereof to the probate court every year at the term at which he is to make settlement.
Ҥ 4582. Any executor or administrator may establish a demand against his testator or intestate, by proceeding against his coexecutor or coadministrator in the manner prescribed for other persons; but if there be no coexecutor or coadministrator, he shall file his claim and other papers, and the court shall appoint some suitable person to appear and manage the defense on the part of the estate.
Ҥ 4590. No executor or administrator, after having given notice of his appointment as provided in this act, shall be held to answer to the suit of any creditor of the deceased unless it be commenced within two years from the time of his giving bond.
“§ 4592. Any creditor of the deceased whose right of action shall not accrue within the said two years after the date of the administration bond, may present his claim to the court from which the letters issued at any time before the estate is fully administered, and if on examination thereof it shall appear to the court that the same is justly due from the estate, it may by consent of that creditor and the executor or' administrator, order the same to be discharged in like manner as if due, after discounting interest as mentioned in this article, or the court may order the executor or administrator to retain in his hands sufficient to satisfy the same; or if any of the heirs of the deceased, or devisees, or others interested in the estate, shall offer to give bond to the alleged creditor, with sufficient surety or sureties, for the payment of the demand in case the same shall be proved to be due from the estate, the court may, if it thinks proper, order such bond to be taken instead of ordering the claim to be discharged as aforesaid, or requiring the executor or administrator to retain the assets as aforesaid.”
The purpose of section 4568 is to give to the executor or administrator notice of the existence of claims against the estate. When a sole executor or administrator has a claim against the estate, there is no person to whom he can exhibit his demand under this statute, except himself, and he .knows of the existence of the claim'without any exhibit of demand. The statute cannot apply to the executor under such circumstances, for the reason that he has notice of the existence of the claim, and his serving upon himself a notice in writing of that claim cannot serve any useful purpose. He would not know any more after the notice had been served than he knew before.
When the claim is filed with the probate court for allowance, a person is appointed to take charge of the defense. That person is not a special administrator. He has no control over the estate; he represents the estate in the lawsuit, and when that is over, his authority ends.
The only effect of the failure of E. G. Hoover to present his claim for allowance was to defer it in classification. If, however, there had been a coexecutor, it would have been Hoover’s duty to exhibit his demand to that coexecutor under section 4582, or sections 4565 and 4590 would apply to him, unless those sections are modified by section 4592. That section is an exception to the operation of sections 4565 and 4590. It provides that a creditor whose right of action has not accrued (whose claim is not due) may present that claim to. the court, for allowance at any time before the estate is fully administered.
Section 4569 does apply to a sole executor as a creditor. He should list his demand and return it to the probate court when he makes his report. His failure to do so may be introduced in evidence against him when he seeks to establish his claim, but such failure will not operate as an estoppel, and will not defeat him when he seeks to procure an allowance of his claim.
E. G. Hoover’s claim against the estate of Samuel H. Hoover was not barred by any statute of nonclaim or of limitations.
6. E. G. Hoover argues that sections 4565 and 4590 began to run from the publication of the notice of appointmént as executor, but that argument is faulty for the reason announced in Bauserman v. Charlott, 46 Kan. 480, 26 Pac. 1051; Kulp v. Kulp, 51 Kan. 341, 32 Pac. 1118; and Brown v. Baxter, 77 Kan. 97, 94 Pac. 155, 574, where it was held that these statutes run against a creditor who permits the statutory time to elapse without procuring the appointment of a personal representative to whom the creditor’s claim may be presented, and against whom it may be allowed. If a creditor cannot stand by and permit the statutory time to elapse, it follows that E. G. Hoover could not stop the running of these statutes by his failure to publish the notice of his appointment.
7. Complaint is made of the admission of evidence, and likewise of the rejection of other evidence. The abstract filed in this court, and the transcript of the evidence introduced on the trial, have been examined, and the court is of the opinion that if any of the evidence admitted was inadmissible, or if any of the evidence rejected should have been admitted, the error was not substantial, nor prejudicial, and does not warrant a reversal of the judgment therefor.
' The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendants appeal from a judgment sustaining a demurrer to their answer to the plaintiffs’ petition. The plaintiffs brought the action to cancel a gas and oil lease given by them on July 1, 1916, to L. E. Conklin for an expressed consideration of one dollar, but for an actual consideration of $800. The lease was assigned to the defendants for a consideration of $960. The validity of the judgment sustaining the demurrer to the answer depends on the interpretation of the lease, which, among other things, contains the following provisions:
“That the lessors in consideration of the sum of one dollar ($1.00) to cash in hand, well and truly paid by the lessee, receipt of which is hereby acknowledged, do hereby grant, demise, lease and let, unto the lessee his successors, and assigns, all of the oil and gas in and under the following described tract of land, .... To have and to hold the same for and during the term of five years from the date hereof, and as much longer thereafter as oil or gas is found therein or said premises developed or operated.....
“If a well is not commenced on said premises within one year from the date hereof, this lease shall become null and void, unless the lessee shall pay or tender to the lessors a rental of one dollar per acre for each additional one year such commencement- is delayed from the -time above mentioned for the commencement of such well, until a Well is commenced on said land, such payment to be made semiannually in advance. It is expressly agreed that the right to so extend and continue this lease is fully paid for by the consideration above mentioned, and that the said payment or tender, when made, shall fully and completely extend this lease from time to time until a well is commenced. The drilling of a producing well on said premises shall operate as a full liquidation of all rentals due or payable under this provision during the remainder of the term of this lease.
“The completion of drilling operations which result in a dry hole or a well not producing oil or gas in paying quantities shall be in lieu of all rentals accruing from and after the date of commencement of said operations, for a period expiring one year after the termination of said' operations, and this lease shall be in full force and effect for said time as fully as if said rentals had been paid or a producing well completed.”
No well was drilled on the leased premises, and no payment of rental was made, although $80 was offered on July 11, 1917. The offer was refused by the plaintiffs, and this action was commenced three days later.
The lease provides that it shall become null and void if no well is commenced on the premises within one year, unless the lessee shall pay or tender rental of one dollar an acre, one-half of which must be paid before July 1, 1917. The defendants seek to avoid this provision of the lease by contending that they did not construe the lease as providing for the payment of rent in advance; that they never intended to abandon the lease; that they offered to pay the rent immediately upon their learning that the plaintiffs contended that it was due; that the lease provided that the right to extend and continue the lease was fully paid for by the consideration named therein; that time is not of the essence of the contract; that drilling a producing well on the premises would operate as a full liquidation of all rent; and that drilling a dry hole would operate in lieu of rent accruing .from and after the date of commencement of drilling operations. The contentions of the defendants are without substantial foundation. The right to extend the lease depended on the payment of rent and was not a consequence flowing from the original consideration alone. The intention of the defendants was of no consequence. They should have paid rent at the time stipulated. Their offer to pay rent came too late; the lease was at that time null and void. If the defendants desired to continue the lease, they should have paid rent on or before July 1, 1917. If they wished to avoid paying rent by drilling operations which would result, in either a producing well or a dry hole, those operations should have been commenced before July 1, 1917. In other words, the lease compelled the defendants to either pay rent or comnience drilling before July 1, 1917- They did neither, and as i result, the lease became null and void, and is subject to forfeiture.
The defendants rely on the principle that forfeitures are not favored by the law, and cite Kays v. Little, 103 Kan. 461, 175 Pac. 149. No equitable reason appears for not canceling the lease in the present action, and the circumstances here are different from those in Kays v. Little. The decision is that case does not apply under the facts in the present one.
The demurrer to the answer was properly sustained, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for the recovery of money. The defendant, the Kansas-Oklahoma Oil & Refinery Company, counterclaimed. The judgment was for the counter-claimant, and the plaintiff appeals.
The district court returned findings of fact and conclusions of law. At the oral argument it was suggested that because so much of the evidence was documentary and was contained in depositions, this court should determine the facts for itself. The case is not properly one of that character, but because the material findings of fact were challenged, it became necessary to review all the evidence, and the decision has been delayed for that purpose.
There are more than 750 pages of printed abstracts. To state the material facts and the contentions of the parties, and to marshal the evidence and state the reasons for the court’s conclusions, would consume, with the utmost condensation, pr'obably fifty pages of the Kansas reports, and perhaps twice that number. At the end the court would have done no more than determine questions of fact neither novel in kind nor of any interest to anybody except the parties to the suit. No principles of law of striking interest, and no new application of old principles, are involved, and wheri the facts have been determined, the conclusions of law follow as a matter of course. Under these circumstances the court does not feel that any useful purpose would be subserved by the publicaation of a formal opinion of the kind which would be required.
The principal contention of the plaintiif was that the Kansas-Oklahoma Oil & Refinery Company and another corporation were so related, and so dealt with each other, that the oil and refinery company became liable for the debt of the other. This court finds that the contention is disproved by the evidence. This court approves the district court’s finding of fact and conclusion of law relating to estoppel. This court further approves the final disposition made by the district court of minor features of the controversy. •
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
In February, 1914, Martha Jane Emery was granted a divorce from Elijah E. Emery, and was awarded the custody of their two children, aged five and seven years. The decree, -from which no appeal was taken, included a provision that an eighty-acre tract of land, which had belonged to the husband, should be owned by the children, subject to a life interest in their father., In November, 1915, the father brought an action against the children, the mother also being made a defendant, asking that his title to the land be quieted — that he be declared to be the absolute owner of it, on the ground that the part of the decree which undertook to vest the fee in the children was wholly void. He was denied relief, and now appeals.
Had an appeal been taken from the part of the judgment in the divorce case which purported to give the land to the children, a reversal could have been had. (Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779; Davidson v. Davidson, 165 N. W. 44 [Iowa].) But whether the present proceeding is regarded as a direct or a‘collateral attack, it cannot succeed merely because the judgment was erroneous. Inasmuch as no appeal was taken and no effort was made to procure a modification of the judgment according to some method prescribed by the statute, it has become final and is binding upon the parties unless the portion of it now in question was without force from the beginning by reason of being in excess of the jurisdiction of the court.
If it could be presumed that the purpose of the court in plac ing the title to the property in the children was to provide for their support and education during their minority, it might well be thought that the order was merely voidable — the exercise in an erroneous manner of a power granted by the statute — but the decree is not open to this interpretation, for it contained a distinct provision for a payment by the husband to the wife for that purpose of an annual sum, which was secured by a lien upon his land, and which was later increased from $200 to $300. Moreover, a decree that the land should pass to the children on the death of their father cannot reasonably be thought to have been intended as a means of providing for their maintenance prior to their majority. The obvious intention was to create an estate for their permanent benefit.
The statute provides that where (as in this case) a divorce is granted by reason of the fault of the husband, the wife shall be restored to all the property owned by her before marriage or acquired by her in her own right thereafter, and shall be allowed such alimony out of her husband’s property as the court shall think reasonable. (Gen. Stat. 1915, § 7581.) The provision with regard to the protection of the children reads: “When a divorce is granted the court shall make provision for the guardianship, custody, support and education of the minor children of the marriage, and may modify or change any order in this respect whenever circumstances render such change proper.” (Gen. Stat. 1915, § 7580.) This clearly means that provision shall be made for the support and education of the children until they shall become of full age. It does not contemplate the creation of a fund for their maintenance after attaining majority, their parents being then under no legal obligation to care for them.
A judgment which declares a legal obligation where none exists under the statute may be effective until set asidé in accordance with some prescribed method, upon the ground that where the court is required to pass judicially upon a question th'e binding force of its decision does not depend upon its correctness (Investment Co. v. Wyandotte County, 86 Kan. 708, 121 Pac. 1097) ; but that principle applies only where the action taken is within the field over which the power of the court extends. Although a court may be called upon to decide the extent of its own power, it cannot be true that where the question so presented is purely one of law, a mistaken decision affirming its jurisdiction must be deemed binding upon the parties to the litigation until set aside, for this view would, in effect, abolish the limits of jurisdiction, and a judgment (for instance) by a justice of the peace upon a claim for more than three hundred dollars would be merely erroneous, and not void. It may not always be easy to distinguish between the attempted exercise of a power that is utterly lacking, and the mistaken exercise of an existing power, but the soundness and importance of the distinction cannot be doubted.
The power even of a court of general jurisdiction does not extend to taking property from a party to an action and giving it to a stranger. Whatever power the district court lias in a divorce suit to afford protection to the children of the parties, is derived from the statute quoted; and is limited to making provision for their support and education during their minority. We regard the attempt to give them outright a part of the father’s property, as lying outside of'the power granted, and therefore as wholly ineffective, where, as in this case, it is clear that the purpose of such transfer was not to make .provision for their maintenance during their minority.
We discover but one reported case bearing directly upon this question. There a federal court disregarded as utterly void a similar order of a state district court made under a statute not essentially different from our own, although because of the generality of its terms it was .open to a possible interpretation authorizing provision to be made for the children even after they had become of age. In the opinion it was said:
“The decision of the circuit court given in the suit for divorce, so far as it provides that the premises in controversy should be held by, or for the use of the minor children of Jacob, beyond the time when they should become of age respectively, is simply void. Upon any construction that I am able to give the act, the legislative assembly did not intend that a father's property should be arbitrarily taken from him and given to his adult child, or what amounts to the same thing, to his minor child to hold and possess after he becomes of age, because forsooth, in a civil suit for divorce, he was adjudged to have broken his marriage vows, or neglected the duties which they imposed upon him.” (Fitch v. Cornell, 1 Sawyer, 156, 170, 9 Federal Cases, 172, 178.)
Later, the supreme court of Oregon, upon the strength of an earlier and apparently unreported case which had some connection with that passed upon by the federal court, held that the statute did authorize the court in a divorce case to transfer to the children the title to land belonging to the parent in fault. (Doscher v. Blackiston, 7 Or. 403.) It was said in the opinion, however, that if the court had. no power under the statute to convey the land to the children, then all that part of the decree was void, and that if the decree failed to make the conveyance, the title remained where it was.
2. The contention is made that the appellant has so far acted upon the judgment in the divorce case as to be estopped to deny its force. The only part of the judgment the validity of which is questioned is that separate arid distinct portion which undertakes to vest in the children the title to a part of their father’s land. The children are the appellant’s adversaries in the present litigation. There is nothing in his conduct that seems to have affected their situation to their disadvantage, or that we regard as creating an estoppel. He has been in the occupancy of the land in controversy, in which, by the terms of the decree, he was to hold only a life estate, but he was entitled to possession of the property as its owner irrespective of the decree.
3. The guardian ad litem appointed to represent the chib dren in this litigation asks that, irrespective of the result, an allowance be made for his services in this court, to be taxed as costs. The present statute, as amended in 1911, provides that such a guardian shall “receive such reasonable compensation as the court or judge before whom the action is pending, or tried, may order, the same to be taxed and collected as costs in the action.” (Gen. State 1915, § 6922.) Under this language, we think it proper that the compensation of the guardian for his services on appeal should be allowed by this court. The question involved in the litigation was sufficiently doubtful so that the resistance of the appeal was justified, and the reversal of the judgment is not a ground for denying compensation. (22 Cyc. 666.) An allowance of one hundred dollars will be made, in addition to the cost of printing the brief. Inasmuch as the appellant, as the father of the children, would in any event ultimately be liable for the services properly rendered for them, the allowance will be taxed directly to him.
The judgment is reversed, and the cause is. remanded with directions to render judgment quieting the plaintiff’s title. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff was injured in defendant’s amusement park in Wichita. She stepped into a small depression in the park grounds and fell and broke her arm. She brought this action for damages, and recovered judgment for $500. The jury made certain special findings:
“No. 1. Q. If you find for the plaintiff, upon what specific kcts of negligence do you base your finding? A. By allowing open depression in grounds. • ,
“No. 5. Q. Did the defendants know of the condition of the depression in question? A. No.
“No. 7. Q. How long had the depression existed prior to the time of the injury, in the condition it was at the time of the injury? A. No evidence.
“No. A. Q. Was there anything about the depression in question whifch would direct the attention of either of the defendants to its ■ condition? A. Not necessarily.
“No. E. Q. If you find the depression in question was dangerous, state wherein the same was dangerous? A. Open depression.”
Defendant contends that its demurrer to plaintiff’s evidence should have been sustained, and that it was entitled to judgment on the special findings.
Touching the first of these, the evidence tended to show that defendant maintained an amusement park in Wichita, in which were a variety of attractions. The defendant charged, an admission fee at the park entrance. On July 5, 1915, some fourteen thousand people, including the plaintiff, had assembled in the park. In going from one place to another, within the park, plaintiff 'stepped into a depression in the ground, which threw her and broke her árm. A witness testified that some days before this accident occurred he saw a depression m the park about where plaintiff was injured; This depression was in a walk, and it was about ten inches deep, eighteen inches long and six- inches wide. Sometime after plaintiff’s accident, the witness was again in the park, and the depression had been leveled. There was other evidence to the same general effect, and the plaintiff’s injuries and their cause were fully established. Defendant contends, without assigning error thereon, that the court erred in instructing the jury that if the park was not kept in a reasonably safe condition for persons invited to enter it, defendant’s negligence in this respect rendered it liable to plaintiff, and that defendant’s knowledge or ignorance of the depression was immaterial. Since it was defendant’s duty to keep the park in safe condition for its patrons to use, it was negligence to overlook and disregard that duty. (Reese v. Abeles, 100 Kan. 518, 164 Pac. 1080.) If defendant had not been negligent, a sudden and unexpected appearance of the depression in the walk or grounds, and the consequent injury of plaintiff, would present a different and more difficult question. But here there was some evidence showing that the depression had existed for a number of days, at least, and in the nature of things plaintiff could not be expected to know or to prove how long the depression had existed. Defendant did produce a number of witnesses who were fa miliar with the park grounds and whose testimony tended to show that there was no visible depression shortly before the accident. But the woman was injured by such a depression, and one of her witnesses testified that it was there in the “latter part of June,” which must have been a week before the accident, and since the jury believed plaintiff’s evidence and disbelieved the defendant’s, the existence of the depression for some considerable length of time must be regarded as established, and defendant was chargeable with knowledge of the defect.
The only point for cavil about the special findings is in the jury’s answer to question No. 7. The jury said there was no evidence to show how long the depression had existed prior to plaintiff’s injury. That response was only literally true. There was evidence (which the jury could have disbelieved) that it existed in the “latter part of June,” while the accident obcurred on July 5. ' It may. have existed much longer. The finding must be construed as meaning that, while the depression had existed for some time, the jury could not tell how long, since there was no evidence on that precise point. (Tarin v. Railway Co., 98 Kan. 605, 158 Pac. 874.) Thus construed, the finding merely means that there was no evidence to show when the depression first appeared, so as to permit a computation of the length of time the depression had existed. Special findings, wherever possible, are to be considered to support the general verdict. There was no request that this finding be made more definite; and, as it stands, it is not at variance with the other special findings, nor with the general verdict.
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The opinion of the court was delivered by
Porter, J.:
The defendant was erecting a building on his lot in the city of Pratt, and the excavation for the foundation caused the wall of plaintiffs’ two-story brick building on the ad joining.lot to fall. The action was to recover the damages. The verdict was for defendant, and he was given judgment for costs. Plaintiffs appeal.
The negligence charged was the defendant’s failure to make his excavation in short sections along the margin of his lot line, his failure to provide lateral supports for plaintiffs’ wall as the excavation progressed and the danger to the structure became apparent. It was further alleged that defendant carelessly-permitted water to accumulate and remain on his premises and thereby caused the soil of plaintiffs’ lot to become' soft and unsubstantial. .
The answer alleged that plaintiffs well knew of the defendant’s intention to make the excavation and what its depth was to be; that the place of business of one of the plaintiffs was on the adjoining lot, and he was present as the work progressed, but that he made no effort to protect the building from injury that might be caused by the excavation.
Complaint is made of an instruction which charged that if plaintiffs had notice or knowledge that the excavation was to be made, the defendant had the right to excavate the full length of his lot, and was not required to remove the dirt in his excavation by piecemeal or in sections, provided he used ordinary care and skill in making the excavation. The refusal to give the following instruction is complained of:
“For the purpose of determining’ the question of negligence the usual custom of making excavations by skilled persons under like circumstances may be considered along with all the facts and circumstances of the case.”
The plaintiffs had introduced evidence tending to show that one method adopted by skillful persons for the protection of an adjoining wall in such circumstances is to have the excavation made in short sections, leaving the earth in the intervening portions to support the adjoining wall until the foundation is constructed in the sections which have been excavated.
In answer to special questions, the jury made findings that the excavation caused plaintiffs’ building to fall; that the defendant had no improper motive in making the excavation on his own lot; that plaintiffs knew the nature.and extent of the excavation, but took no steps toward shoring up their own building or otherwise protecting it from danger; and that there was no contract or agreement between tbe parties whereby plaintiffs’ wall should be protected by the defendant.
The instructions, and the theory upon which the trial court proceeded, accord with the doctrine of Winn v. Abeles, 35 Kan. 85, 10 Pac. 443, in which it was declared:
“While an owner is entitled to claim that his land shall have the lateral support of the soil of the adjoining.land, this right is limited to the soil in its natural condition, and does not include anything which may be placed thereon which sensibly increases the burden.” (syl. ¶ 2.)
“The fact that a land-owner has erected a building upon the verge of his lot will not preclude an adjacent lot-owner from excavating to the usual depth, and to the extreme limits of his lot, preparatory to the erection of a building thereón, nor make him liable for any damage thereby occasioned to his neighbor’s building, providing the excavation is made with reasonable skill and caution, and with no improper motive.” (syl. ¶3.)
The owner of a building has no natural easement for the •lateral support of the land of an adjoining owner. The obligation rests upon himself to shore or protect his building on notification or knowledge that the adjacent proprietor intends to make an excavation; and where there is no statutory or contractual obligation, one who excavates on his own land and who exercises reasonable care and skill is ordinarily not liable for injuries resulting to buildings on adjoining land. And it has been held that the obligation resting upon him to use ordinary care and skill in the work is not affected by the fact that the building on the adjoining premises is poorly constructed. (Jamison v. Myrtle Lodge, 158 Ia. 264; Moore v. Anderson, 5 Boyce [Del.], 477; Cooper v. Altoona C. C. & S. Co., 231 Pa. St. 557.) In the latter case it was said:
“The owner of the lot on which the, excavating was done had the unquestioned right to do, or have done,- all that was done. He could not disturb the land of the adjoining owner by withdrawing lateral support, but if he did, the damages resulting would only be for injury to the land and not to the building. Cooper was bound in law to support and pro-, tect his own building. The excavator on the adjoining lot was only bound to use due care so as not to negligently or carelessly inflict an injury upon the property of his neighbor.” (p. 560.)
What is ordinary skill and care in the excavating and attendant work depends on the circumstances of each particular case and is a question for the jury.
The plaintiffs in the present case, with knowledge of the progress of the work of excavating, stood by and did nothing to protect their own property, and their contributory negligence would prevent a recovery. (Jamison v. Mrytle Lodge, supra.)
The apparent inconsistencies in the special findings disappear. Findings 15 and 16, in effect, are that the excavation in defendant’s lot was carried on in the usual and ordinary manner adopted by persons skilled in such work, although none of the usual and ordinary measures were adopted by the defendant on the day the building collapsed. Under the law, as the jury were instructed, no obligation rested upon the defendant to take the usual and ordinary methods to protect plaintiffs’ building. Finding 19, that if the wall had been properly braced the excavation would not have caused the building to fall, is perfectly consistent with all the findings and the general verdict ; while finding 20, to the effect thast making the excavation on the day the building fell was not a prudent or careful pro-, cedure “considering the condition of plaintiffs’ wall at the time, without having taken proper steps to prevent the wall from falling,” is a slap at the plaintiffs, whose duty it was to protect their building, and the finding is consistent with the other findings and the verdict.
Besides, the theory upon which plaintiffs tried their case was not that defendant had failed to exercise ordinary care in the manner in which the work'was done, but that he was under obligation to take affirmative steps to prevent injury to their property resulting from the excavation of the trench. This is apparent from the character of the evidence relied upon, the instructions of which complaint is made, and the theory stated in the petition.
No error appears in the record, and the judgment is affirmed. | [
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The opinion of the court was delivered by
BURCH, J.:
The action was one by a mortgagor for statutory' relief against a mortgagee because of a refusal of the mortgagee to release the mortgage of record. A demurrer was sustained to the petition, and the plaintiff appeals.
The statute involved reads as follows:
“When any mortgage of real estate shall be paid, or when a mortgage shall be recorded in the office of the register of deeds, covering real property in which the mortgagor has no interest, it shall be the duty of the mortgagee or his assignee within sixty days after demand, in case demand can be made, by the mortgagor, his heirs or assigns, or by any 'one acting for such mortgagor, his heirs or assigns, to enter satisfaction or cause satisfaction of such mortgage to be entered of record with out charge; and any mortgagee or assignee of such mortgagee who shall refuse or neglect to enter satisfaction of such mortgage as is provided by this act shall be liable in damages to such mortgagor, or his grantee or heirs, in the sum of one hundred dollars, together with a reasonable attorney’s fee for preparing and prosecuting such suit; and the plaintiff in such action may recover any additional damages that the evidence in the case will warrant. Civil actions may be brought under this act before any court of competent jurisdiction, .and attachments may be had as in other cases.
“That in any action commenced in the district court to recover damages under the provisions of this act, the plaintiff may unite with such claim a cause of action to cancel the mortgage and remove the cloud from the title; and if plaintiff recovers damages in such action, he shall be entitled to a further judgment canceling -such mortgage and quieting the title to the mortgaged premises; and where personal service of summons cannot be had on the defendant or defendants within this state, judgment canceling such mortgage may be rendered in the action upon proof of due service by publication, or upon due personal service obtained out of this state.” (Gen. Stat. 1915, §§ 6471, 6473.)
The petition alleged that the mortgagor, by contract with the mortgagee, had the privilege of paying the debt before its stated maturity, in the event he sold the property to a purchaser who declined to assume the mortgage; that he sold the property free of encumbrance to such a purchaser; that he tendered the amount of the debt to the mortgagee, in order that he might consummate the sale and convey the property free of encumbrance; but that the tender was refused, and due demand for release of the mortgage’was not complied with. The plaintiff offered to pay into court the amount of the tender, and claimed the statutory damages and an attorney fee. A second cause of action incorporated the foregoing facts, and alleged that because of the wrongful conduct of the mortgagee, consummation of the sale had been prevented, the plaintiff’s title was clouded by the uiireleased mortgage, and the plaintiff sustained additional damages. The prayer was for statutory damages, for additional damages, for an attorney fee, and for cancellation of the mortgage.
The action of the district court in sustaining the demurrer appears to have been the result of a strict interpretation of the statute. It seems to have been held that the statute is penal ; that because the statute is penal, nothing but payment actually received by the mortgagee will make the prescribed remedies available to the mortgagor; and that because in this instance the mortgagee has not yet come into possession of the money tendered him, he has not yet incurred the penalties imposed by the statute.
The statute is purely remedial, as disinguished from penal. While it is. sufficiently stern to make release of a satisfied mortgage worth while, there is nothing vindictive about it, and the purpose was, not to punish the mortgagee, but to afford redress to the mortgagor. The provisions relating to procedure are clearly remedial; so are the provisions for removal of the cloud on the mortgagor’s title, for recovery of an attorney fee, and for recovery of damages additional to the statutory damages. The sum of one hundred dollars which the mortgagor is permitted to recover is expressly classified as damages, and the court has already indicated its view that such sum is to be regarded as compensation, and not as a penalty. (Livick v. Bank, 96 Kan. 5, 149 Pac. 676.) A mortgagor, having the right to pay off his mortgage and endeavoring to do so, cannot compel the mortgagee to take the .money. All the mortgagor can do is to tender the amount he owes. Having done this, he is entitled to have the mortgage released, and the purpose of the statute is to afford full relief to a mortgagor in any case of wrongful refusal of the mortgagee to enter satisfaction of the mortgage.
The defendant makes an argument to this effect: The peti-s tion alleged that the land was sold. It also alleged that consummation of the sale was prevented by the conduct of the defendant. A sale involves transfer of title. If a sale were not consummated, the plaintiff had no right to pay off the mortgage. If a sale were consummated, the statutory remedy vested in the purchaser. It is not likely the district court was sympathetically impressed by this dog-in-the-manger attitude of the defendant. The very situation arose which was contemplated by the contract permitting the mortgagor to pay before maturity, and the defendant canndt deny that a sale was made, the consummation of which the defendant itself prevented by refusing to accept the tender.
The petition alleged that the defendant is a corporation organized under the laws of the state of Ohio, and is without authority to conduct the business of loaning money in Kansas. Presumably the statutory demand was made in Ohio. The de fendant argues that it cannot be penalized by a statute of this state for nonaction in Ohio, in respect to a demand made there. The argument is fortified by a decision of the supreme court of South Dakota in the case of Jones v. Fidelity Loan & Trust Co., 7 S. Dak. 122. As already iridicated, the statute is not penal, and the principle that penal statutes are without extraterritorial effect does not apply. Besides this, the defendant’s contumacy did not consist simply in ignoring in Ohio a notification received there. It consisted in not performing, in Jackson county, Kansas, an act pertaining to a privilege which the defendant had enjoyed there, and pertaining to a condition existing there for which the defendant was responsible. The subject was clearly within legislative cognizance. The remedies are all exercisable in this state, and in this instance are invoked in this state. Consequently, the defendant cannot complain that either the legislature or the plaintiff is out of bounds.
The judgment of the district court is reversed, and the cause is remanded with direction to overrule the demurrer. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is a proceeding in the nature of a creditor’s bill. On May 20, 1913, A. L. Sedbrook recovered a judgment against B. M. McCue for $5,367.50, which was subsequently assigned to the plaintiffs, who are his sons. They allege that McCue is the real owner of a number of tracts of land, the title of which is held in the'names of Mary McCue', his wife, A. H. Warner, W. M. Kinnison, C. B. Oldfield, Wesley A. Taylor, and Elbert McCue, who are named as defendants. It is averred that the defendants conspired with McCue, the judgment debtor, to secrete his property and thereby defraud and defeat his creditors. In her answer Mrs. McCue set out her interest in the land, alleging that she had acquired a body of land in Nebraska prior to her marriage, and with her own money had purchased an additional tract in that state, after her marriage, and that for convenience the title to her lands was placed in her husband; that thereafter she exchanged her Nebraska lands for a two-thirds interest in seventy quarter sections of lands in the counties of Stevens and Haskell in Kansas, and for convenience the title to these lands was allowed to stand in her husband, who owned the other one-third interest in the same lands; and that a sale of part of these tracts was made, and the money received therefor invested in other lands. During these transactions it is alleged that B. M. McCue was solvent and a man of large means, and that the title to Mrs. McCue’s land was allowed to remain for a time in his name as a matter of convenience, without any, intent to mislead or defraud any one. She further stated that long prior to the rendition of plaintiff’s judgment, McCue conveyed to her the lands mentioned, partly for the purpose of putting the record title of her lands in her own name, and partly for the purpose of paying her a large sum of money for which he was indebted to her by reason of the real-estate transactions; that this was done before the rendition of the judgment held by the plaintiffs; and that their judgment never became a lien upon these lands. ■ The plaintiffs replied, denying that Mrs. McCue had any interest in the lands the title of which stood in the name of her husband, and they averred that she permitted the title to remain in his name to strengthen his credit, and that A. L. Sedbrook relied on the record titles and the representations made by McCue when the debt for which the judgment was rendered was contracted.
The defendant Warner answered that McCue became indebted to the New England National Bank, .and also the Garden City National Bank, of which W. M. Kinnison and himself were the president and cashier respectively, and that they had become sureties for McCue on that $30,000 of indebtedness. He further alleged that McCue had become financially embarrassed and involved in litigation with the Commercial Trust Company over a mortgage given by him and his wife upon all the lands described in plaintiffs’ petition, and also other lands, and that McCue entered into a contract with him and Kinnison by which the lands were transferred to them, in consideration of which they were to advance money to pay the expenses of the litigation, and also for the purpose of paying underlying liens, thus saving a part of the land; and at the same time protecting the obligation which they had assumed as sureties for McCue. He further alleged that advances had been made under the agreement for expenses and the payment of liens, aggregating about $60,000, which was a valid lien upon the lands transferred to them by a deed, which was in effect a mortgage, and was superior to plaintiff’s judgment lien. It was also alleged that th'e lands had been conveyed by Kinnison to the defendant Warner, and that he holds the same under the terms and conditions of the contract for himself and Kinnison.
In the trial it was shown that a contract had been made with F. Dumont Smith and Albert Hoskinson, attorneys at law, by which they were to conduct the litigation between McCue and the Commonwealth Trust Company, which Kinnison and Warner had agreed to finance, under which the attorneys were paid a retainer and an amount of money for expenses of the litigation, and as further compensation it was agreed that they should receive one-half of all the moneys or properties that might be saved by their efforts through litigation, compromises, or otherwise. The trial court held that plaintiffs had failed to establish their claims of fraud and gave judgment for the defendants. The plaintiffs insist that the land transactions between McCue and his wife were not made in good faith; that she was not in fact the owner of the lands; and that he was not indebted to her; and further, that the transfer of the lands to her was designed to defraud creditors. These transactions mainly occurred before the judgment assigned to plaintiffs was rendered. No evidence was introduced to discredit the claim of ownership of the Nebraska lands by'Mrs. McCue, nor that she was the owner of the Kansas lands received in exchange for her property in Nebraska. That McCue was indebted to his wife on account of land transactions, was shown beyond question. At the time of these transactions McCue was solvent and a man of considerable wealth. In the construction of a railroad he became financially involved, and the litigation growing out of the railroad construction and the appropriation of a part of the lands in question to the carrying on of that litigation, in order to save a part of the lands, has given rise to much contention between the parties herein.
The litigation with the Commonwealth Trust Company not only involved large interests, but was of a complicated and difficult character, and this appears from a branch of the litigation which reached this court. (Lynn v. McCue, 94 Kan. 761, 147 Pac. 808.) In a later trial the mortgage of the trust company was canceled, and no appeal was taken from the judgment. To carry out the provisions of the judgment, Charles G. Cobb,- to whom the trust company had transferred its interests, executed a deed to Kinnison and thereby released the mortgage and removed that cloud from the. title to the lands.
Plaintiffs contend that the contract vvith the attorneys is contrary to public policy and void. It is not claimed that it is champertous, and the charge of invalidity is not specific. A large contingent fee was agreed upon, but—
“It is not illegal nor against public policy for a lawyer to prosecute an action for a client who is unable to pay for his services; no'r, in such a case, is it illegal or against public policy for the lawyer to contract with the client for compensation for his services out of the amount recovered, and contingent upon recovery.” (Stevens v. Sheriff, 76 Kan. 124, 90 Pac. 799.)
Neither can the contingent share agreed to be paid be regarded as unconscionable or inequitable. McCue was insolvent and without means to prosecute the action. The litigation necessarily involved much time, and skill, and work, as well as much uncertainty as to the result. It required the bringing of suits in a number of counties, and in more than one state. It is stated that the attorneys had sixteen suits relating to the subject matter pending in different counties of Kansas, and two in the state of Missouri, and that the litigation ran through a period of three years. Although the contingent fee was large, it cannot be regarded as excessive when considered in connection with the services rendered and the hazards of such doubtful litigation. Besides, no complaint is made by the clients of unfairness in the terms of the contract, excessiveness in the share paid or to be paid, or as to the value of the services rendered. The argument of plaintiffs implies that the contract is void because the attorneys were employed to defeat creditors, and the same charge is made as against the agreement by Kinnison and Warner to furnish the means to aid in carrying on the litigation. There is nothing substantial in this contention, as the enforceability of the mortgage of the trust company was a matter of substantial dispute, and the judgment rendered at the end of the litigation canceling the mortgage leaves no room to question the good faith and legality of the resistance that was made to the enforcement of the mortgage. In furnishing money to help conduct the litigation, Kinnison and Warner had not only the strength and justice of the defense against the mortgage as an inducement, but having become sureties on a large amount of the McCue indebtedness, and there being no resources of McCue to look to except the land, good grounds existed for the protection of themselves against their suretyship liability by aiding in the defeat of the $400,000 encumbrance claimed by the trust company. No principle of public policy was violated by the part which they took in helping to defeat the unenforceable lien and thereby saving themselves and a part of the encumbered lands. To secure this protection, judgments were paid, liens discharged, sales and exchanges made, and while there is criticism of these transactions, nothing was developed to show that they were inconsistent with an honest endeavor to carry out the purposes of the parties as expressed in their contracts. A great number of these transactions are referred to by the plaintiffs as subject to suspicion, but there is no substantial proof to show that they were dishonest or made for the fraudulent purpose of concealing McCue’s property from his creditors.
The appeal involves little, but the sufficiency of the evidence to prove the alleged fraud. The testimony is too voluminous to warrant its reproduction here, but a careful examination of it satisfies us that there was no error in the holding of the trial court, nor in the judgment that was rendered.
Affirmed. | [
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The opinion of the court was delivered by
West, J.:
The defendant appeals from an adverse judgment and complains of the action of the court in overruling his motion to require the plaintiff to elect, in overruling his application to refer the case, and in overruling his demurrer to the plaintiff’s evidence. He also complains of the ruling that the action began at the date of the note involved herein, of the refusal to hear evidence prior to that date, and of the rejection of certain offered evidence.
The defendant was related to some of the officers of the bank and had had an account there for some time. On September 18, 1914, he executed to the order of the plaintiff his promissory note for $1,000, payable on demand. A dispute arose as to whether or not this note had been paid, and on February 17, 1915, he signed a receipt for its return, reciting that it had been duly stamped “paid” at his request, and that he claimed he did not owe it, followed by these words:
“If I ever find that an error has heen made by me I do hereby agree to pay The Washington National Bank, Washington, Kansas, said $1,000 according to agreement on said note.”
In August, 1916, the parties entered into an arbitration agreement reciting that they were desirous of settling their dispute and differences, and agreeing that the arbitrators should “examine into the account between said bank and the said J. H. Myers, including a certain promissory note, in writing, in the sum of one thousand (1,000.00) dollars, dated September the 18th, 1914, . . . and all other transactions between the said J. H. Myers and said bank, from and after the 13th day of October, 1909.”
The report of the arbitrators recited:
“We . . . having heard the proofs and allegations . . . and having examined the matters in controversy by them submitted, do make this award in writing. . . . We, the aforesaid board, . . . have carefully examined and checked the account of the said J. H. Myers in regard to all his transactions with the said Washington National Bank, of Washington, Kansas, beginning Oct. 13, 1909, . . . as to all deposits made and checks drawn by him on the said bank, also notes given by him to the said bank for credit and renewal, and all other transactions up to and including April 6, 1915, after which date there appears to be no further business transacted by the said Myers with the said bank.”
The arbitrators found that he owed the $1,000 on the note referred to.
It was alleged that the defendant acquiesced in the award and orally promised to pay it.
Two of the arbitrators testified that Mr. Myers was present when they examined the several items which he called to their attention, and that they examined all the evidence presented by him, and one of them stated that they went over seven or eight years’ business. The cashier of the plaintiff bank testified that a short time after the board met, the defendant called him into the back room and said, of course, he would have to borrow the money, but that he would come in in a few days and settle up. It does not appear that this was denied by the defendant.
The petition alleged the execution of the note, the circum stance of its return, the receipt given therefor, the subsequent arbitration and the result thereof, the defendant’s failure to acquiesce in the award and his oral promise to pay, and alleged his failure to pay or return the note. ¡
The answer denied that the arbitrators went fully into the matters in controversy and alleged numerous errors made by the bank during the defendant’s patronage thereof; denied his indebtedness; and alleged a complete settlement made with the bank February 17, 1915.
When the case came on for trial there was considerable discussion about whether the petition should be construed as seeking to recover on the note or on one of the subsequent agreements. One of the plaintiff’s counsel replied that it took all of the petition to state the case “and we therefore stand upon all of the petition.” Later this counsel said:
“We stand upon the judgment rendered by a court of arbitration, and to my mind it is purely a question of law as to whether that arbitration is legal or not."
His co-counsel stated he stood with his colleague; that there was no difference between them, saying:
“We stand upon the debt; we claim there is an indebtedness due the plaintiff and the allegations of our petition is to that effect.”
In this colloquy it was said that when the matter was up on •a motion to elect, the court had said that ih thought four causes of action were stated, and that if the plaintiff elected to stand on one, the others would be dismissed, which statement was why counsel now stood on all of them, “and it takes all of them to make our case.” Finally, the court announced, in substance, that it would hold that the cause of action was based upon an alleged indebtedness, and that the various.statements were incidents alleged to show that indebtedness.
The defendant offered to show that he was not in debt when he gave the note, and offered to show various payments during the time covered by the arbitrators, for which he had not been given credit by the bank. This was refused.
The evidence shows that the arbitrators went all over the account and the dealings of the parties from 1909 to April, 1915, and that the defendant said he would pay the award. No fraud is alleged touching the arbitration, and the mere averment that the board “did not fully and carefully investigate and consider all the matters and things relating to the controversy” is not such a charge of fraud as to impeach the award. (2 R. C. L. 389, § 34. See, also, Miller v. Brumbaugh, 7 Kan. 343; Weir v. West, 27 Kan. 650; Russell v. Seery, 52 Kan. 736, 35 Pac. 812; Thompson v. Barber, 87 Kan. 692, 125 Pac. 33; Swisher v. Dunn, 89 Kan. 412, 131 Pac. 571.)
Neither was it error to take the date of the note as the starting point. The arbitrators had gone clear back to 1909, and there was nothing pleaded or shown to impeach their award, and as there ought to be an end, so there should be a beginning of litigation.
The rulings as to election, causes of action, and the date of the starting place were made in time to save the defendant any disaster by surprise. Indeed, no request for time or continuance was made, but the trial proceeded without objection.
Complaint is made that the court, tried the case, instead of submitting it to a referee. There is no claim that full time was not given to present the facts and, of course, it is not intimated that any chosen referee would have been abler or fairer than the trial judge. The appointment is not compulsory, but discretionary. (Civ. Code, § 299.) The discretion was not abused.
(Martin v. Windsor Hotel Co., 70 N. Y. 101; Maxwell v. Cottle, 25 N. Y. Supp. 635; Farmers’ Loan & Trust Co. v. Northern Pac. R. Co., 61 Fed. 546; Pierce v. Thompson, 6 Pick. [Mass.] 192; Fortune v. Watkins, 94 N. C. 304.)
Finally, the rejected evidence was not produced on the hearing of the motion for a new trial (Civ. Code, § 307), and the trial court’s construction of the petition was correct.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
This action was brought by the heirs at law of John C. Golder to impeach his will on the ground that it was made when he was of unsound mind, and without testamentary capacity. After a large number of witnesses had testified pro and con as to his mental condition, the court found that at the time he made his will he was of sound and disposing mind.
The plaintiffs rested their case on the proposition that, while in a general way he was of sound mind, he was laboring under an insane delusion that his son-in-law had put poison in the eyewater which he was using, and that actuated by such delusion he changed his will so as to give the daughter one thousand dollars instead of two eighty-acre tracts of land.
The court was requested to find that the testator was thus influenced to change his will, but made only a general finding thát when he made the last will he was of sound and disposing mind.
While from the cloud of witnesses much testimony was received which would have supported the finding requested, the trial court was not convinced thereby, and the question of the alleged delusion being one of fact, the conclusion of the trial court must stand, supported as it is by the testimony of numerous witnesses.
While the writer feels convinced that the plaintiff’s assertion was sustained, the other members of the court hold the contrary view. This makes it unnecessary to refer to the authorities cited, or to quote any of the evidence.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from a declaratory judgment action and a request for injunctive relief brought by the State of Kansas on the relation of the attorney general and the State Director of Alcholic Beverage Control against the Kansas Retail Liquor Dealers Foundation, Inc., and others connected therewith. The action challenges the validity of the purposes and functions of the Foundation under the provisions of the Alcoholic Beverage Control Act.
The case was tried on an agreed statement of facts.
On April 29, 1962, the Kansas Retail Liquor Dealers Association had its regular board meeting in Topeka, Kansas, and duly passed the following resolution:
“Resolved, that the Kansas Retail Liquor Dealers Association organize and form a non-profit corporation by the name of Kansas Retail Liquor Dealers Foundation, Inc. with its principal business office in Topeka, Kansas, 3310 Harrison Street. Its registered agent to be T. M. Murrell; that the Board authorize seven (7) in number of its members to act as incorporators to execute all documents for that purpose, these members are as follows: . . .”
The names and addresses of the seven incorporators were set out.
The resolution provided that the incorporators would serve as the directors of the Foundation and fixed their terms. It further provided, “. . . that the Treasurer of the Kansas Retail Liquor Dealers Association be directed to pay all necessary expenses of the incorporation of the Kansas Retail Liquor Dealers Foundation, Inc.”
Pursuant to the resolution, articles of incorporation were filed in the office of the Secretray of State April 30, 1962. The articles of incorporation state the purposes of the corporation as follows:
“This corporation is organized not for profit and the objects and purposes to be transacted and carried on are:
“To foster and promote in every and any lawful manner the interests of persons, firms, associations, corporations and others engaged or interested directly or indirectly in the alcohol beverage industry, or in any branch thereof, or in any industry or business alike or incidental thereto.
“In furtherance, but not in limitation, of the foregoing general powers, it is expressly provided that the organization shall have the following powers:
“A. To engage in educational and publicity campaigns and programs.
“B. To support and improve regulatory laws governing the sale and use of alcoholic beverage, and to uphold the system of private enterprise and the manufacture, distribution and sale of alcoholic beverage.
“C. To provide honest opposition to the principals of prohibition, and its resulting evils.
“D. To support related public relation programs.
“E. To educate those engaged in the sale of liquor under the authority by the State of Kansas.
“F. To create and stimulate a fair and intelligent attitude on the part of the public with reference to the requirements of the Kansas liquor laws and regulations.
“G. To accomplish fail' and intelligent legislation with respect to the handling of liquor by retail dealers licensed by the State of Kansas.
“H. To foster the business of its members and to distribute and supply such members of the public with active and reliable information on matters pertaining to the handling and distribution of liquor.
“I. To use all possible means to remove abuses from the business in the sale of liquor and to promote harmony among the licensed retail liquor dealers of Kansas.
“J. To own so called private labels’ and to lease the same to distillers or distilleries of alcoholic beverage for use on all categories of alcoholic beverage and to contract for royalties from the sale thereof.
“K. To own property, real or personal, and to buy, sell and lease the same.
“L. To execute contracts and do all things natural persons may do.
“M. To have and exercise all powers necessary or incidental to carry out the corporate purposes, to exercise all other powers permitted by law, and to possess and enjoy all rights or powers which now are or at anytime hereafter may be granted to or exercised by a corporation of this character.”
The corporation was not to have stockholders or members.
Pursuant to the authority granted by the Board of Directors a contract was negotiated with the McCormick Distilling Company May 1, 1962. The contact provided for the leasing of a private label “Big K” by the Foundation to McCormick Distilling Company in consideration of royalties to be paid the Foundation as provided in the contract.
On May 7, 1962, the trade-mark owned by the Foundation “Big K” was registered with the office of the Secretary of State of Kansas. Both federal and state approval was obtained for the label and trade-mark “Big K” to be used on bourbon, 86-proof; Vodka 80-proof; Vodka 90-proof, and Gin 90-proof.
Prices were duly posted with the office of the Alcohol Beverage Control Board on or before May 15, 1962. They were approved, printed and posted in the official mandatory minimum price schedule published and printed by the office of the Alcohol Bev erage Control Board to be effective for the third quarter of 1962 commencing July 1, 1962. Labels and photographs of the package were submitted to the office of the Director pursuant to ABC Rule, 14-61.
On or about June 19, 1962, the McCormick Distilling Company wrote a letter to the Director of Alcohol Beverage Control requesting a release date of July 16, 1962, for the sale of “Big K” Bourbon, Gin and Vodka. On June 22, 1962, a letter was addressed to Mr. Howard Johnson, Sales Director, McCormick Distilling Company, Weston, Missouri by the Director of Alcohol Beverage Control which reads:
“Your letter of June 18, requesting release date of July 16 for the sale of ‘Big K’ Bourbon 86-proof, ‘Big K’ Gin 90-proof, and ‘Big K’ Vodka 80 and 90 proof, for the third quarter, 1962, received.
“As per your request, the release date asked by you is approved.”
The “Big K” brand of alcoholic liquor has been purchased in the State of Kansas by the consuming public at a retail price comparable to nationally known brands of alcoholic liquor offered for sale on the Kansas market. The proceeds from the royalties collected by the Foundation have been impounded.
The district court concluded that the purpose expressed in the articles of incorporation of the Foundation were in violation of the Alcoholic Beverage Control Act and enjoined the Foundation'from carrying out such purposes expressed in its charter. The defendants have appealed.
The appellants present two basic questions:
1. Does the corporate function of the defendant Foundation constitute an activity which gives the members of the Kansas Retail Liquor Dealers Association a “beneficial interest” in the manufacture of alcoholic beverages in violation of G. S. 1961 Supp., 41-311 (2) (c)?
2. Does the corporate function of the defendant Foundation constitute an activity which places each member of the Kansas retail Dealers Association in violation of G. S. 1949, 41-702 (1), in that the individual retailers will receive something of value?
The two questions are closely related. The same facts will apply to each and they will be considered together.
The statute relating to classes of persons to whom retail liquor licenses shall not be issued provides in part:
“A parson who has beneficial interest in the manufacturing, preparation or wholesaling of alcoholic beverages: . . . (G. S. 1961 Supp., 41-311 [2] [c].)
The statute forbidding the retailers to receive and the wholesalers to give anything of value reads:
“It shall be unlawful for any person having a retailer’s license, or any officer, associate, member, representative or agent of such licensee to accept, receive, or borrow money, or anything else of value, or to accept or receive credit, directly or indirectly, from any person, partnership or corporation engaged in the manufacturing, distributing or wholesaling of such liquor, or from any person connected with or in any way representing, or from any member of the family of such manufacturer, distributor or wholesaler, or from any stockholders in any corporation engaged in manufacturing, distributing or wholesaling of such liquor, or from any officer, manager, agent, or representative of such manufacturer, distributor or wholesaler. It shall be unlawful for any manufacturer, distributor or wholesaler to give or lend money or anything of value or otherwise loan or extend credit, directly or indirectly, to any such licensee or to the manager, representative, agent, officer or director of such licensee. . . .” (G. S. 1949, 41-702.)
It would appear that if the retail liquor dealers have any beneficial interest in the manufacturing, preparation, or wholesaling of alcoholic beverages due to the purposes and functions of the Foundation, they will receive something of value from such manufacturing, preparation or wholesaling. The something of value will be in the form of substantial royalties received from a manufacturer or distiller, the McCormick Distilling Company, for the privilege of placing the “Big K” label on its bottled liquor. A questionable privilege, the use of an unknown brand label, unless the sale of the liquor so labeled was to be pushed by the Kansas retail liquor dealers.
The appellants would contend that the Foundation, which was conceived, fostered and is completely dominated by the Kansas retail liquor dealers, may operate wholly as an eleemosynary association, and, if so, the retailers will receive no benefit. The Foundation s articles of incorporation refute the contention.
The general purpose of the Foundation is to foster and promote in every and any lawful manner the interest of persons or firms engaged in the alcoholic beverage industry. In furtherance of the general purpose, but not in limitation, the corporation was given specific powers to engage in educational and publicity campaigns; support and improve regulatory laws; provide honest opposition to the principles of prohibition; support related public relation programs; accomplish fair and intelligent legislation relating to retail liquor dealers in Kansas; foster the business of its members, and own so called “private labels” and contract for royalties.
It is apparent that the purpose of the Foundation is to raise a fund to finance the activities of the Kansas Retail Liquor Dealers Association, and thus avoid the necessity of individual retailers reaching into their pockets to finance such activities.
The purpose of the Alcoholic Beverage Control Act was to completely divorce the retail sales of liquor from manufacturing and wholesaling. That which is directly prohibited cannot be doiie indirectly.
In State v. Payne, 183 Kan. 396, 327 P. 2d 1071, it is stated:
“In its comprehensive scheme of regulating, licensing and taxing alcoholic liquor from the time of its manufacture or importation into the state until its ultimate sale by a licensed retailer for use and consumption, the manifest purpose of the legislature was to channelize the liquor traffic; to minimize the commonly attendant evils; also, to facilitate the collection of revenue. To this end the manufacture, sale, transportation, and possession are permitted only under carefully prescribed conditions (G. S. 1949, 41-104), and subject to constant control by the state (G. S. 1949, 41-208). All phases of the traffic are declared illegal unless definitely authorized by the act (G. S. 1949, 41-104). . . .” (p. 402.)
The legislature saw a possible evil in any tie-in between retailers and manufacturers.
The appellant relies on the case of State, ex rel., v. Murphy, 183 Kan. 698, 332 P. 2d 533, in which this court held valid the use of a private label by a retailer. In that case there was no contention that the retailer was receiving a royalty or rebate from a wholesaler or manufacturer for the right to use the private label. Therefore, the decision is not applicable to the facts in the present case.
We must conclude that the Foundation was to be operated for the benefit of the Kansas retail liquor dealers; it was to operate on funds received from a liquor manufacturer; the funds, although designated as royalties, were more in the form of rebates for pushing the sale of the manufacturer’s liquors under the “Big K” label, and the activities and purposes of the Foundation were in violation of G. S. 1961 Supp., 41-311 (2) (c) and G. S. 1949, 41-702.
The defendant contends that no justiciable controversy exists, and will not exist, until such time as it is known how the money received by the Foundation from the McCormick Distilling Company is to be spent.
We are not persuaded by appellants’ contention. It is to be presumed that the funds will be expended to accomplish the purposes stated in the Foundation’s articles of incorporation. An actual controversy existed when the Foundation entered into the contract with the distiller for the use of the “Big K” label and started collecting funds for the accoimplishment of its corporate purposes.
Although the action was brought for a declaratory judgment, the form of the action was in the nature of injunction, which is a preventive measure. In order for it to be effective, it must operate before the unlawful act is consummated. In Franks v. State Highway Commission, 182 Kan. 131, 136, 319 P. 2d 535, it is said:
“. . . Injunction is an equitable remedy and is a preventative measure to maintain the status quo (28 Am. Jur., Injunctions, § 5, p. 199, 43 C. J. S., Injunctions, § 1, p. 406) or to operate in futuro (Andeel v. Woods, 174 Kan. 556, 258 P. 2d 285.)”
“A court of equity is not powerless to prevent the doing of an act merely because it is denounced as a public offense.” (State, ex rel., v. Hines, 178 Kan. 142, Syl. 5, 283 P. 2d 472.)
Although an injunction will not ordinarily be allowed to prevent an unlawful act which is merely anticipated, the state is not required to wait until the unlawful act has been consummated before taking steps to protect the public. Public prosecutors have the authority to proceed by an injunctive action to prevent the violation of the state’s police regulations where an unlawful act must be anticipated from the facts and circumstances which have already occurred. (Dougan v. Shawnee County Comm’rs, 141 Kan. 554, 43 P. 2d 223.)
In The State, ex rel., v. Industrial Workers of the World, 113 Kan. 347, 214 Pac. 617, this court had under consideration a petition to enjoin an anticipated criminal act. The facts were stated as follows:
“The petition described the organization and management of the Industrial Workers of the World, and of certain branches under the names ‘Agricultural Workers Industrial Union No. 400,’ ‘Agricultural Workers Organization of the I. W. W. No. 400,’ ‘Oil Workers Industrial Union No. 450’ and ‘O. W. I. U. No. 450.’ The petition also described the purposes, and the methods of accomplishing the purposes, of the organization. Certain of these methods were denounced as felonious by chapter 37 of the Laws of 1920. This statute was analyzed in the opinion in the case of The State v. Breen, 110 Kan. 817, 205 Pac. 632.”
It was held in the syllabus:
“The petition in an action to restrain the Industrial Workers of the World, its executive board, and its officers, agents, and members, from committing in Kansas depredations against property by criminal syndicalism and sabotage, as defined by chapter 37 of the Laws of 1920, considered, and held to state a cause of action as against objection that a court of equity has no power to enforce a criminal statute by injunctive order, and other objections.”
An actual controversy did exist and the issues ¡were ripe for judicial determination
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Porter J.:
The plaintiff purchased a lot in Overland Park, a suburban tract owned and platted by defendant, paid part of the purchase price when the contract was executed and gave his promissory notes secured by a mortgage on the property for the balance, which was payable in monthly installments with interest. The contract provided that if there was default in payments for ninety days after they became, due, the deferred payments should immediately become due at defendant’s option. The plaintiff insisted upon, and defendant agreed to, the following special provision, which was attached to the printed form:
“It is understood that the purchaser shall have the privilege of paying for said lot in full at any time before the maturity of the contract, and shall have the further privilege of platting same into five (5) lots, subject in all respects to the restrictions contained in said contract and may obtain a deed to any or all of said lots upon payment of the proportionate part of lots so released. The contract in other respects to continue in full force and effect.”
The purchase price of the lot was $1,250. When the plaintiff had paid $522, together with interest, hé demanded a deed to two-fifths of the lot, but was informed by the defendant that there was a first mortgage on the entire tract which could not be released until plaintiff paid the full contract price of his lot. The plaintiff then demanded the return of the money he had paid, and this was refused. Subsequently plaintiff brought this action, alleging that he had caused a plat to be .made and filed for record, dividing the lot into five equal parts, and asking that defendant be compelled to convey the two-fifths selected by him. The petition asked for an interpretation of the special provision of the contract, ahd alleged that the reasonable value of the two-fifths portion of the lot was $1,500, and that because of defendant’s failure to comply with the terms of the contract, plaintiff had been damaged in the sum of $804.40.
The answer alleged that under the proper interpretation of the contract plaintiff was not entitled, upon payment of two-fifths of the total purchase price, to select two-fifths of the lot in area and demand a deed therefor, but was only entitled to demand a deed for two-fifths of the entire lot in value. In a cross petition it was alleged that plaintiff had defaulted in the subsequent payments; that defendant elected to declare all the deferred payments due; and judgment was asked for $728, and interest from June 11, 1910, when the default occurred. The defendant tendered a good and sufficient deed to the lot, together with an abstract of title, and prayed for a foreclosure of the contract as an equitable mortgage.
The district court held that the plaintiff was entitled to a conveyance to that portion of the lot selected by him, but further held that the defendant was entitled to a judgment for the balance of the purchase price of the entire lot, and that the damages plaintiff had sustained should be offset by the interest which had accrued upon the balance of the purchase price. The decree required the defendant to deposit a good conveyance to the portion of the lot selected by the plaintiff, and the contract was foreclosed as an equitable mortgage. From this judgment the plaintiff appeals.
' The contention is that the judgment, in effect, renders valueless the special provision of the contract, which was for the benefit of plaintiff. It is urged that the defendant should have been denied the right to judgment for the balance of the consideration, because of its own default in refusing to comply with plaintiff’s demand for a deed. The plaintiff relies upon the general rule that where one party is unable or refuses to perform his part of a contract, he is not entitled to insist upon performance by the other. On the trial defendant took the position, and offered testimony to show, that the particular portion of the tract selected by plaintiff, and for which he had demanded a deed, fronted upon a boulevard and was of much greater proportionate value than the remaining portions of the lot, and that to have executed a deed conveying the most valuable part of the tract to him would have been inequitable. Upon the. other hand, it is insisted that the court found against defendant on these contentions; that, having held plaintiff entitled to the conveyance at the time it was demanded, it was error to .hold plaintiff liable for the payment of the balance of the purchase price after the defendant’s breach of the contract.
Although plaintiff’s interpretation of the special provision was found by the trial court to be correct, the language of the provision was open to two constructions. Therefore, it cannot be said there was no basis for defendant’s contention that plaintiff was only entitled to a deed for two-fifths of the value,' instead of two-fifths of the area of the entire lot, at the time he made his demand. This was a suit in equity, in which both parties asked for the interpretation of a contract to some extent ambiguous and uncertain in its terms, and the trial court, in our opinion, rendered a decree which, in view of all the facts and circumstances, is fair and equitable. There is no explanation of the long delay that occurred between the time the demand for a conveyance was refused, and the commencement of the suit. Plaintiff made the first payment when the contract was executed, on June 11, 1910. His last payment was made April 18, 1911. The action was not commenced until May 15, 1914, three years after the demand for a deed had been refused. The case was not brought to trial until March, 1916. The defendant’s refusal to comply with the demand did not of itself satisfy the obligation which -the plaintiff had entered into to make the additional payments. He was still indebted to the defendant on his notes. While the court interpreted the contract in conformity with the plaintiff’s contentions, and held that he was entitled to a conveyance at the time he demanded it, the court concluded that the damages he had sustained were fully offset by the interest for which he was liable on the balance of his indebtedness. The record does not disclose what damages the plaintiff sustained; and, in the absence of any showing as to what extent, if any, the property depreciated in value between the time the conveyance was refused and the time the cause ■was tried, we must conclude that the court properly balanced the damages with defendant’s loss of interest on the deferred payments.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The action, which was to quiet title to a half section of land in Gray county, was commenced under section 618 of the code of civil procedure. An amended petition set out the source of, plaintiffs’ title, which is a tax deed issued in 1889. It was alleged that the defendants claimed some right ■or interest in the land which was a cloud on plaintiffs’ title, ■and it was asked that they be compelled to set up their claims. In both petitions plaintiffs asserted actual and peaceable possession since 1889. John Harper, the only defendant upon whom service was obtained, answered with a general denial, admitting he claimed an interest in the land, and alleging that plaintiffs’ tax deed is void because it'was not recorded within the time prescribed by law. The court found the facts, and held the tax deed void because it had not been recorded until more than six months after it was issued. It was adjudged that John Harper, was the owner in fee of an undivided eleven-fifteenths -interest in the lands, that plaintiffs had no right, title, or interest, but they were given a lien for taxes and interest amounting to $3,062.85. Harper appeals upon the sole ground that it was error to allow the plaintiffs’ tax lien.
The defendant Harper alleged in his answer that the tax deed was void, and asked no affirmative relief, but merely that he be dismissed with costs. His contention is that the right to a lien for taxes is purely statutory, and that section 11457 of the General Statutes of 1915 gives the remedy only in cases where “the holder-of a tax deed or any one claiming under him by virtue of such tax deed be defeated in an action by or against him for the recovery of the land sold.”
The principal cases relied upon are Corbin v. Young, 24 Kan. 198, Coonradt v. Myers, 31 Kan. 30, 2 Pac. 858, and Trust Co. v. Essex, 74 Kan. 240, 86 Pac. 467, to the effect .that a holder of a tax deed who fails to establish the validity of his deed' in an action to quiet title against the original owner will not be entitled to a tax lien.
Exceptions have been recognized to the rule stated in the foregoing cases. The rule does not deprive a court from allowing a tax lien, merely because the action is an equitable one, nor merely because neither party seeks to recover possession.
In Davidson v. Timmons, 88 Kan. 553, 129 Pac. 133, a tax lien was allowed the defendant in an action to quiet title. In that case plaintiff brought an action to quiet his title as against the claim of an interest in the land by the defendant, and asked that the defendant set up his claim and that it be adjudicated. The defendant answered, setting up a tax lien, and asked the court to protect his right to a lien, and it was held that under those circumstances, the court was warranted in adjudicating-the defendant’s rights and in granting him affirmative relief by a lien for the taxes. It was said in the opinion:
“After inviting Lantis to set up his interest and to have it adjudicated, Davidson is hardly in a position to object to a judgment which determined that interest and which directed the enforcement of a lien found to exist.” (p. 559.)
It has been said that “one who stands wholly upon the defensive may, without proving his own interest, show that a tax deed” is void. (Parker v. Vaughn, 85 Kan. 324, syl. ¶ 1, 116 Pac. 882.) In the present case, the defendant might have stood upon his answer attacking the validity of the tax deed, and asking merely to be permitted to go out of court with his costs; but he was not content with this. He introduced tne evidence of his own title, thereby enlarging the issues, and he obtained from- the court much more than a mere judgment that the plaintiffs’ tax deed was void. The court quieted his title against the plaintiff, and adjudged him to be the owner in fee of the land. He does not appeal from that part of the , judgment, but seeks to hold fast to his affirmative relief, and, on technical rules of pleading, avoid repayment of the taxes advanced by plaintiffs. After first declining the invitation to set up his own claims of title, he reconsidered the matter and offered proof to establish his title, and accepted the benefits of the judgment granting him affirmative relief; and he cannot now complain that the conditions which the court imposed are inequitable.
Plaintiffs have a cross appeal in which they renew their contention in the court below, that the failure to record the tax deed is cured by section 2084 of the General Statutes of 1915, known as the curative act, which provides that when any instrument of writing shall have been recorded for the period of ten years and there is a defect, because the instrument is not acknowledged, ■ “or because of any defect in the execution, acknowledgment, recording or certificate of recording the same, such instrument shall, from and after the expiration of ten years from the filing thereof for record, be valid as though such instrument had, in the first instance, been in all respects duly executed, acknowledged, and certified.” The statute merely purports to cure defects caused by a failure to acknowledge the instrument, or defects in the acknowledgment, execution, or recording of the instrument. There was ho defect in the recording of the tax deed; the register of deeds properly performed his duty, but the holder of the deed failed to file it for record until it had become void.
The plaintiffs contended at the trial, and sought to show, that Harper, who is an attorney at law and at times engages in the real-estate business, had acquired his title to the land under circumstances which made him, in equity, the trustee for the plaintiffs; that while acting as plaintiffs’ agent for the sale of the land, he examined their abstract which they sent him, discovered that their title was defective, and as an attorney advised them how it could be perfected; and that while representing them as their attorney, he obtained information from their abstract of title which he afterwards used to his own advantage in procuring the outstanding adverse title under which he now claims. The court, however, made a finding that the relation of attorney and client never existed. While the correspondence between the parties came very near to creating that relation, we think the decision of the trial court upon that matter must be sustained.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an attachment proceeding, in which certain equipment intended for use in the construction of railroads, including horses and mules, was seized. The plaintiff insisted that it was the property of C. D. Eby, a debtor of plaintiff, while the defendants claimed it to be the property of the'Eby Construction Company, and not subject to attachment for the debts of C. D. Eby. The ownership of the property was the principal question submitted to the trial court, which found that the Eby Construction Company was the owner, and the decision of this appeal depends upon whether there is evidence to sustain the finding and judgment of that court.
It appears that C. D. Eby borrowed money from the plaintiff bank in 1903, which was used in a mining enterprise, and the note then given was renewed from time to time and payments were made thereon. C. D. Eby denies liability on the notes, but that question is not in issue here. Tn 1904 and 1905, C. D. Eby was engaged in railroad work in partnership with the Stockers, the father and brother of his wife; This partnership was dissolved, and later, in 1909, C. D. Eby was solicited by his brother S. G. Eby to join him in some railroad construction and in the purchase of a grading outfit which was for sale. C. D. Eby undertook to raise the money for this purpose, and there is testimony which indicates that he failed in the attempt, and that his wife, Mrs. A. M. Eby, procured the money and went into the enterprise with S. G. Eby, under the firm name of Eby Brothers. None of the money for the project was furnished by the plaintiff bank, and it had no connection with the business of the firm or of the construction company. This business was conducted by the Ebys until 1912, when the Eby Construction Company was organized. Mrs. A. M. Eby took about one-half of the stock, and S. G. Eby most of the remainder. This company contracted to build a section of the Salina Northern Railroad, and while engaged in that enterprise Mrs. Eby purchased the stock of S. G. Eby, and he retired from the company. Later the attachment in question was levied on the grading outfit as the property, of C. D. Eby.
The contention is that while Mrs. A. M. Eby procured money and invested it in the business of the firm and the corporation, it was obtained and furnished for her husband, and that all the time he was the owner, and managed and: carried on the business as owner, and not as agent for his wife. Much testimony was taken, and some of it tends to support the theory and contention of the plaintiff, but there is a great deal of testimony that tends to uphold the claim of the defendant and the finding.of the trial court. It goes to show that in 1909, when the business was started, she put in $1,500 of money which she borrowed on collateral owned by her; that later she put in $2,000 obtained from the sale of her property; and that at another time, when there was need of more money in the enterprise, she borrowed $1,500 from a brother and invested it in the business. At one time she got from her father, who was a man of considerable wealth, $975, which went into the business. It is claimed that C. D. Eby was obligated in part for some of the money borrowed by her, and further that some of the earnings of the business was used to pay these obligations. A great volume of testimony has been produced on the question of ownership, and much of it is very conflicting in character. It is not practical, and indeed would not be useful, to recite it at length in an opinion. Careful consideration has been given to it, and we have concluded that it is sufficient to support the finding of the court that the attached property was owned by the Eby Construction Company, and that C. D. Eby had no interest in it.
There is a further claim that the defendant company is estopped by the action of the company in giving a bond conditioned that the property attached or its appraised value in money shall be forthcoming to answer the judgment which the court may render. The construction company, as we have seen, intervened- in the case brought against the attachment .debtor, claiming to be the owner of the property. When it was attached, Mrs. A. M. Eby, the president of the company, notified the sheriff that C. D. Eby had no interest in the property, and that it belonged to the company. Insisting on ownership, the bond was given so as to hold the property and avoid unnecessary expense of maintenance until the question of ownership was adjudicated. It was not given in behalf of the attachment debtor, but for its own benefit and as a substitute for the property which the sheriff had seized. Under these circumstances, the giving of the bond did not mislead the creditor, nor did it estop the company from demanding an adjudication of the ownership of the property. (Commission Co. v. Tate, 91 Kan. 538, 138 Pac. 602; Commission Co. v. Hicks, 92 Kan. 922, 142 Pac. 276.)
Finding no material error in the record, the judgment is aifirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought to compel the executor of an estate to pay an indebtedness secured by a mortgage upon land of the estate of a deceased person out of the proceeds of the personal estate, and in that way exonerate the land from the lien of the mortgage.
In 1909, Thomas Haney owned a farm on which there was a mortgage of $3,000. He sold it to Bussart and Collier, and in the contract of purchase it was stipulated that they assumed and would pay the mortgage debt. In the deed, however, there was no mention made of the assumption, but there was a clause excepting the mortgage from the covenants of warranty. Prior to the sale, the land'had been occupied by Haney and wife as their homestead, and it appears that she did not sign the contract, but- she did sign the deed which was executed on the same day as the contract and deposited with it ini a bank to await compliance with the conditions of the transfer. Bussart and Collier conveyed the land to Edwin M. Smith, and in the conveyance there was an express stipulation that Smith assumed and agreed to pay the mortgage debt, which was part of the purchase price of the land. Shortly after the latter conveyance Smith died testate, and in his will was a general direction for the payment of his debts out of his estate. Aside from a bequest of $100, he gave his wife all of his personal property and a life estate in all of his realty, to his son Irwin G. Smith, the plaintiff, the fee-simple title to his real estate was given, subject to the life estate. • No specific reference to the mortgage on the land or the debt which it secured was made in the will.
The principal question presented here is, from what source should the mortgage debt be paid? The statute and the will must determine the question. Considerable is said in the briefs as to the common-law rules relating to the exoneration of the realty of an estate of a deceased person, but as our statute provides for the settlement of estates and the descent and devolution of property, we must look to it and to the will made in pursuance of the statute to determine from what fund the indebtedness should be paid. It was competent for the testator to require the payment of the mortgage debt out of a particular fund, or to devise the land, subject to the mortgage debt. In this instance the testator did neither. In general terms he directed that his debts should be paid out of his estate, without indicating that any particular fund or property should be used for that purpose. The personal property, which amounted to $4,016, and also the life estate in his land, were given to his wife, without indicating the part which should be devoted to the payment of debts. The fee title as we have seen was given absolutely to his son, without mention of the mortgage debt or of anything indicating an obligation of the devisee to pay the mortgage debt. There being nothing in the will indicating the purpose of the testator that the debts should be paid out of any particular fund, and there being no provision that any class of his property, real or personal, should be exempted from the. payment of his debts, the rule of payment prescribed by the statute must be followed. . The debts of a testator are primarily payable out of the personal property. (Gen. Stat. 1915, §§ 3853, 4553, 11812.) If the personal property is insufficient to pay all the debts of the deceased, resort to the real estate may be had for that purpose. (Gen. Stat. 1915, § 4598.) This is the exoneration provided by statute where a testator in his will has not required the appropriation of a particular part of his estate to the payment of debts. A debt secured by a mortgage falls within the class of obligations payable from personal property. The note secured constitutes the .debt and is the main thing, while the mortgage is a mere incident and is collateral to the note.
It has been said:
“The rule that testator's debts are primarily payable out of his personalty applies not only to his general debts but to such debts as have become liens upon specified property of testator, whether real or personal. Unless the contrary appears in his will these debts are payable primarily out of his personal estate not specifically bequeathed. The omission of mortgagees to present their claims to the executor does not destroy the right of the devisee of mortgaged property to have the debt paid out of the personalty.” (Page on Wills, § 765.)
(See, also, Newcomer v. Wallace and Others, 30 Ind. 216.)
It follows that all the debts, secured and unsecured, of the testator herein are payable from the personal estate, if it is sufficient for that purpose. The wife and the son each took the share given her and him, subject to the directions in the will and to the requirements of the statute.
■ It is contended, however, that the mortgage debt was not in fact an obligation of the testator; that while he had specifically assumed and agreed to pay it, the promise was not binding, because his grantors, Bussart and Collier, had not agreed and were under no obligations to pay the' debt.
In Bank v. Bales, 101 Kan. 100, 165 Pac. 843, it was decided that—
“A grantee who, in a deed, assumes and agrees to pay a mortgage on the land conveyed, is not personally liable to the mortgagee unless the grantor in that deed is liable.” (syl. ¶ 1.)
Although there may be no liability to a mortgagee in such case, one may arise upon a promise of a grantee to an intervening .grantor for the assumption of the mortgage as a condition of the transfer. (Morlan v. Loch, 95 Kan. 716, 149 Pac. 431.) It can hardly be said, however, that the grantors of the testator were not liable to the mortgagee for the mortgage debt. Although the assumption of the debt was not expressly mentioned in the deed executed by Haney to them, the written contract executed in pursuance of a verbal agreement contained an express promise to assume and pay the debt. This promise and assumption was just as binding as if it had constituted a provision of the deed. To be valid it was not essential that the agreement be a part of the deed, nor that the promisor should have signed any writing. . (Fisher v. Spillman, 85 Kan. 552, 118 Pac. 65.) The fact that Bussart had his wife named as a grantee in the deed did not take away the binding effect of the obligation. She left the transaction of the business to her husband and took her interest, whatever it may have been, subject to the agreement which Bussart and Collier made with the grantor, Haney. A valid agreement had been made between Haney and the firm of Bussart and Collier, and while the wife of Bussart, who is named in the deed, was not informed as to the contract of assumption, her agent and husband had full knowledge of that contract, and .in pursuance of it the deed was made.
It is argued that there was no acceptance or ratification of the assumption of the mortgage debt by the owner of it, and "that, the testator could not be regarded-as the debtor of the owner until there was an acceptance by him. It appears that the owner of the debt recognized the testator as a debtor, inasmuch as he accepted from Smith payments of interest as well as a small payment of the principal. It was optional with the holder of the debt to accept payment from the testator and the executor of his estate, or to rely on the mortgaged property for payment of the debt. There was an obligation by the testator to his grantors to pay the debt, and upon an acceptance by the owner of the debt a liability of the testator arose in favor of the, owner also. It then became a. personal liability of the testator which the owner could enforce at his option. There is a finding that the owner of the debt was satisfied with the mortgage security, and has never sought to enforce payment by those who assumed the payment of the debt. The fact that the owner did not try to enforce payment against one who assumed to pay the debt which constituted a part of the purchase price of the land, does not make the obligation of the latter any the less personal. It has tóeen said:
. “But it is clear that an actual dealing with the mortgagee is not essential to render the debt personal to the purchaser, for the same effect will be produced if the transaction between the vendor and vendee is such as to show that the purchase was inclusive of the mortgagee’s interest in the land, not of the equity of redemption only, the mortgage debt forming part of the price of the estate." (2 Jarman on Wills, 6th ed., p. 586.)
There is a further contention that the contract of assumption is not binding, because the farm was the homestead of the Haneys, that the consent of the wife to the contract was lacking, and that this circumstance caused a break in the chain of liability. This contention cannot be upheld. The title to the land was in Haney. His wife did not, it is true, sign the contract of sale in which there was an assumption of the debt, but it cannot be said that there was a lack of her consent. The contract and the deed, which she did sign,- were executed on the same day, were parts of a single transaction, and both were deposited -together in a bank until final adjustment was made between the grantors and the grantees and the transaction between them was completed. The signing of the deed and the other steps taken in the consummation of the contract evidenced a consent by her as convincing as if she had signed both papers. „ ’
Another objection urged against the claim of personal liability of the estate to pay the debt is that it was not presented to the probate court within the period prescribed by the non-claim limitation. (Gen. Stat. 1915, § 4565.) The failure of the plaintiff to present such a claim is'no bar to the bringing of this equitable proceeding. In speaking of the failure of a mortgagee to present his mortgage debt as a demand against an estate,, it was said .*
“It is generally held that claims purely equitable in their nature require no presentation or approval.” (Andrews v. Morse, 51 Kan. 30, 33, 32 Pac. 640.)
He had no claim against the estate to present. The owner of the mortgage had a right to look to the personal obligation of the testator to pay the mortgage debt. The liability of the testator and of the estate was a continuing one, which could be enforced at any time before the mortgage debt became barred under the ordinary limitations prescribed by the code. The debt in question was still alive and enforceable by the owner, and, not having run as against him, it cannot be held to have run against this equitable proceeding to exonerate the land from the payment of the debts of the estate until the personal property has been exhausted.
On the findings of the court, it must be held that the plaintiff was entitled to the relief sought and, therefore, the judgment is reversed and the cause remanded with directions to enter judgment in favor of plaintiff in. accordance with the prayer of his petition. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiffs broúght this action against B. McNitt, Henry Buss, and Elbridge Phillips, the defendants, upon the following written obligation:
“In consideration of Furst & Thomas extending credit to . . . Salesman [B. McNitt] we, the undersigned, jointly and severally, guarantee to them the faithful performance of this contract by him, and full settlement according to its terms, for all goods sold to him on credit by them, hereby .waiving notice of acceptance and all notice as to the account of said Salesman, and we agree that any extension of time to him shall not release us from liability hereon.
“ (Guarantors sign here) P. O. Address. Business or Occupation.
“Henry Buss, Speed, Kansas, Farmer,
“Elbridge Phillips, Logan, Kansas, Farmer.”
Plaintiffs’ petition alleged that in 1912 they entered into a contract with B. McNitt, thereby appointing him their agent for the sale of their wares, and in consideration of their extension of credit to McNitt, these defendants and others signed the above obligation, and that McNitt had made default in his contract to pay for certain merchandise furnished to him by plaintiffs, that McNitt was insolvent, and that defendants refused to pay.
' Defendant Buss, after denying that he had signed the instrument, answered (2) that the instrument was given without consideration, (3) that when he learned that plaintiffs claimed that he had signed he immediately, on January 5, 1915, gave them notice that he denied liability, (4) that there was a misjoinder of causes and of parties as theretofore urged in his overruled demurrer to plaintiffs’ petition, and (5) that plaintiffs had full knowledge of McNitt’s defaults but neglected to proceed against him while he still had property to satisfy his debt to plaintiffs.
Plaintiffs’ demurrer to these numbered defenses was sustained.
Defendant Phillips’ answer admitted (1) that he signed some instrument while working in his corn field, that he could not read without spectacles, and that McNitt, who presented the paper to him with a request for his signature, stated that it was only a recommfendation of McNitt, and being unable to read and believing its contents to be what McNitt told him,' he signed the document; (2) that there wás a misjoinder of causes and of parties as theretofore urged in his overruled demurrer to plaintiffs’ petition, and that no execution had been issued against McNitt nor any effort made to collect the debt from him; (3) that there was no consideration for defendant’s signature to the instrument; and (4) that he had notified plaintiffs in January, 1915, that he denied liability, at which time McNitt had goods of plaintiff and outstanding accounts and other sources amply sufficient to satisfy plain-: tiffs’ account, if they had used reasonable diligence, and that plaintiffs knowingly allowed McNitt to continue the sale of their merchandise and to collect and sequester outstanding accounts, when they might have collected from him.
This action was filed August 11, 1917, some two years and seven months after defendants notified plaintiffs that they denied liability.
Plaintiffs’ demurrer to all parts of Phillips’ answer was sustained.
Both defendants appeal. They first project the question whether the instrument signed by defendants was a contract to guarantee the payment of McNitt’s debtor a' contract to indemnify plaintiff against the default of McNitt. Defendants contend that their obligation belongs to the latter class, and they invoke the rule that an indemnitor is not liable until the indemnified parties have exhausted their remedies againát the principal obligor. (McNall v. Burrow & White, 33 Kan. 495, 6 Pac. 897; Burton v. Dewey, 4 Kan. App. 589, 592, 46 Pac. 325; 12 R. C. L. 1057, 1090-1094.)
This contention is susceptible of several answers. Our code of civil procedure, section 38, provides :
“Persons severally liable upon the same obligation or 'instrument, including the parties to bills of exchange and promisory- notes, and indorsers and guarantors, may all or any of them be included in the same action, at the option of the plaintiff.” (Gen. Stat. 1915, § 6928.)
This provision tends to lessen litigation, and the rights of parties who are only secondarily liable can be equitably and adequately safeguarded in the judgment, by directing that execution be first issued upon the property of those primarily liable, and that that source of satisfaction be exhausted before levying upon the property of those secondarily liable. (Emery v. Bank, 97 Kan. 231, 233, 155 Pac. 34; Bank v. Bowdon, 98 Kan. 140, 157 Pac. 429.)
Moreover, the obligation signed by defendants, in form and scope, is an unconditional guaranty, and under that sort of an obligation the default of the'party whose contracts, fidelity or conduct is guaranteed, matures the liability of the guarantors, and the party for whose benefit the guaranty was made need not await an unsuccessful execution against the principal obligor before proceeding against the guarantors. (Crissey v. Loan Co., 59 Kan. 561, 567, 53 Pac. 867; 14 A. & E. Encycl. of L., 2d ed., 1141, 1153; 12 R. C. L. 1089.)
It should also be noted that plaintiffs’ petition alleged that the principal obligor, McNitt, was wholly insolvent, and that the debt could not be collected from him. There is an ancient legal maxim that the law requires no one to do vain or useless things (2 Bouvier’s Law Dictionary, Rawle’s 3d Revision, 2143), and the rule is well established that where the principal obligor is admittedly insolvent, the indemnified party may proceed at once against the guarantors, without first pursuing a futile action against the’principal. (12 R. C. L. 1091.) In a note to Fall v. Youmans (67 Minn. 83), 64 Am. St. Rep. 398, 399, it is said:
“And, in some jurisdictions, it is held that due diligence requires the prosecution of the debtor to execution and return of nulla bona, and that insolvency is no excuse for a failure to prosecute; . . . But in other jurisdictions the principle is recognized that the law requires no idle act, and that it is more just not to require a suit, with all its attendant expense and trouble, where it must be fruitless, and to allow, under some circumstances, the diligence to be waived by the party for whose benefit it is required. Hence, it is held in some states, that if the maker of a note, or other debtor, be so utterly insolvent that an action against him would be fruitless, the holder of the guaranty is not obliged to institute legal proceedings against the debtor 'before resorting to a suit on the guaranty. [Citing cases.] . . . *It is clear that insolvency does not excuse suit unless the fact is proved in some way, but the ascertainment, upon correct and sufficient proofs, of entire and notorious insolvency [or if that fact is conceded by demurrer], is recognized by the law as answering the demand of due diligence, and as dispensing with the more dilatory evidence óf a suit.” ■ ■
The foregoing' also disposes of defendants’■ second contention — the misjoinder of parties and of causes of action. 'The default of the principal and of the guarantors was essentially but one cause of action.
Their third contention is that the demurrer conceded a gross want of diligence on the part of plaintiffs and want of effort to collect from McNitt, when if diligence had been used, plaintiffs might have collected from him while he still had funds and property to satisfy his obligations. The trouble with that defense is, that the guarantors bound themselves “that any extension of time to him [McNitt] shall not release us from liability.” So the long delay in bringing suit against McNitt (and defendants) is insufficient to discharge and relieve the defendants.
However, the pleadings of both defendants did raise a partial defense which the' demurrer could not meet. An excerpt from the answer of defendant Phillips will serve to develop the point:
“For further defense to plaintiffs’ cause of action this defendant says that as early as January 5th, 1915, he notified plaintiffs that he would not be held as a guarantor for any obligations of the principal defendant, . . . That said notice -stfas so given to and received by plaintiffs.
“That said defendant repeatedly since said January 5th, 1915, and while said defendant, McNitt, had the means, and plaintiffs had the opportunity to have collected the same, notified plaintiffs of his refusal to be held as a guarantor for the debts of said McNitt, but that plaintiffs continued up to the present time to neglect the collection of their said debts from their said debtor, McNitt.”
Of course, this mere disavowal of liability would not relieve the defendants therefrom; but did not this correspondence have the legal effect of terminating any further liability of defendants on any later furnishing of goods to McNitt or any credit extended to him after that correspondence was received by the company? The contract can hardly be construed to bind the defendants in such manner that plaintiffs might continue to furnish goods to McNitt indefinitely on the strength of defendants’ guaranty. They should have the right to bring to a conclusion sometime the creation of new or additional liabilities against them. The. law seems to allow them to do this. In 12 R. C. L. 1088, it is said:
“A guaranty based on no consideration moving to the guarantor, which contemplates future credit to be extended to another, and which is thus continuing in character, is subject to revocation by the guarantor, and he is not liable for credit extended to the principal debtor after the creditor has received notice of the revocation. Of course, the guarantor cannot revoke the guaranty so as to escape liability for credit already extended, but as to future credit the guaranty is considered to be but little more than an offer to guarantee which the guarantor may withdraw at his pleasure. The creditor may recover for all advances made before he receives notice of the revocation, but the giving of the notice limits the guarantor’s liability to the credits already given.”
(See, also, Dry Goods Co. v. Yearout, 59 Kan. 684, 54 Pac. 1062.)
As against a demurrer, the court holds that the correspondence between the parties in January, 1915, and subsequent thereto, should be construed as a notice revoking defendants’ guaranty of future credits to McNitt. The trial court can take this point into consideration in the further proceedings in this case, and, with this modification, the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Is a city liable for the damages resulting from the action of a mob which forms and operates within a city, where the injuries are inflicted on persons and property outside of the corporate limits of the city, is the uestion presented on these appeals.
The question arises on a ruling of the trial court sustaining s a demurrer to plaintiff’s petition in each case. In each petition it was alleged, in substance, that a mob of about two hundred persons assembled in the city for the unlawful purpose of injuring plaintiff and destroying his home and its contents, which were located just a few feet outside of the corporate limits; that the mob came close to the house, and from a point within the corporate limits of the city shot into and threw stones at the house, destroying it and damaging and carrying away personal property of considerable value. The defendant contends, and the ruling of the court appears to have been based upon the theory, that no liability can arise from the action of a mob which takes effect outside bf the corporate limits. The statute under which the actions were brought provides that:
“All incorporated cities and towns shall be liable for all damages that may accrue in consequence of the action of mobs within their corporate limits, whether such damages shall be loss of property or injury to life or limb.” (Gen. Stat. 1915, § 3822.)
The defined liability arises as a consequence of the action which a mob takes within the corporate limits of a city or town. It is based on the place where the action is had, and not on the place where it takes effect. It differs from a statute of Illinois which makes the place where the property destroyed or injured, and not the place where the mob assembled, the criterion as to liability, and it was held that a municipality was not liable under that statute for the action of a mob assembling or occurring outside the limits of the municipality, and beyond the control of its officers. (Sturges v. City of Chicago, 237 Ill. 46.) Here the mob assembled and operated within the corporate limits and in a place where the city authorities had control. According to our statute, if the mob assembles and operates within the corporate limits, and its action results in damages, the city is liable, not only for the damages done within the city, but “for all damages that may accrue in consequence of the action,” etc. It has been said—
“One of the purposes of the statute was to quicken the public conscience and stimulate a sentiment in fávor of law and order by making each citizen and taxpayer responsible for a proportionate share of the loss resulting from mob violence and thus making each a champion of peace and good oredr.” (Blakeman v. City of Wichita, 93 Kan. 444, 449; 144 Pac. 816.)
The statute was intended to prevent the organization of such mobs as were formed in the defendant city, and to impose a penalty for the failure of,the city to suppress such mobs and prevent them from committing acts of mob violence within the jurisdiction of the city. The city authorities had the power, and they were charged with the duty, of preventing the assembling of the mob and the execution of their unlawful purpose within the corporate limits of the city. The defendant cannot escape liability because the mob so formed established its battle line on the corporate boundary and shot and stoned persons and property outside the corporate limits.
The judgment is reversed, and the cause is remanded for further proceedings. | [
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The opinion of the court was delivered by
West, J.:
The plaintiffs sued to recover for materials and provisions sold and delivered to Burton and Carter, who were alleged to have been engaged and employed in the construction of certain sections of the principal defendant’s railroad as con tractors, the railroad company not having taken any bond from them to protect materialmen as provided by statute.
To the original petition a demurrer and motions to make definite and' certain were filed and sustained. The plaintiffs filed an amended petition, and motions to make this pleading definite and certain were filed and overruled. Thereupon, the defendants demurred upon the ground that the amended petition did not state a cause of action. This demurrer was sustained, and the-plaintiffs appeal.
The significant allegations of the amended petition were that the plaintiffs furnished certain provisions to Burton and Carter who—
“Were engaged and employed in the construction of certain sections of said Salina Northern Railroad as contractors; . . . plaintiff further alleges that said Salina Northern Railroad Company did not take from said Burton and Carter, as contractors, or either of them, a good and sufficient bond, conditioned that said persons should pay all laborers, mechanics and materialmen, and persons who supply such contractors with provisions or goods of any kind and all just debts due to such persons, as provided by law, but failed and neglected so to do; and by reason of the failure to take such bond said railroad company is liable to the plaintiffs herein to the full extent of all such debts so contracted by said contractors by the provisions of the statutes in such cases made and provided. Plaintiffs further state that by reason of the facts heretofore alleged, the defendants are indebted to them in the sum of $617.56 on an account for said goods, materials, provisions and merchandise so sold and delivered to said Burton and Carter as such contractors.”
After overruling motions to máke a petition more definite and certain the liberal rule applying to petitions as against a demurrer becomes more strict, and unless the pleading fairly states a cause of action it cannot be upheld. (Stewart v. Balderston, 10 Kan. 131; Wilhite v. Dieball, 94 Kan. 78, 82, 145 Pac. 854; Balmer v. Long, ante, p. 408, 179 Pac. 371.)
' It was said on the argument by counsel for the defendants that Burton and Carter were not contractors, but subcontractors. However that may be, the amended petition avoids, studiously or otherwise, the statement that Burton and Carter were engaged in the construction of any portion of the railroad as contractors with the railroad company. In Lapere v. Luckey, 23 Kan. 534, it was said:
“There was an apparently labored effort to avoid stating some of the facts which should have been stated in detail. . . . Inadvertent omis sions of facts from a pleading, . . . áre generally looked upon leniently by the courts, . . . but a studious omission of important facts from a pleading cannot be favored.” (pp. 536, 537.)
Such an allegation is essential to bring the case within the statute, which applies only in case a railroad company “shall contract with any person for the construction of its road or any part thereof,” when such railroad company shall “take from the person with whom such contract is made a good and sufficient bond.” (Gen. Stat. 1915, § 8453.)
If Burton and Carter were under contract with the railroad company, a very few words would have expressed such fact, and their absence leaves the pleading insufficient to state a cause of action.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to recover damages for the death of her son, Clarence M. Edwards. Judgment was rendered for the plaintiff, overruling the demurrers to her petition, filed by each of the defendants, who separately appeal.
Among other matters, the petition in substance alleges that the Southwestern Bell Telephone' Company owned and operated a telephone system in Kansas City; Kan., and had a line of telephone wires on poles on the west side of Eighteenth street near the intersection of Spring street; that at that place the telephone company maintained a telephone pole twenty or twenty-five feet high on which steps were nailed for the convenience of its employees in climbing the pole; that the steps commenced about eighteen inches above the ground, were about eighteen inches apart, and extended to the cross arms holding the telephone, wires; that the city maintained an electric-light wire which extended from a pole on the east side of Eighteenth street across the telephone wires, to the west side of that street; that- the electric-light wire was about six inches above the telephone pole; that the insulation on the electric-light wire had become defective and rotten; and that the condition of that wire exposed to danger those persons who might be upon the telephone pole or in close proximity to the electric-light wire.
The petition further alleges:
“That by reason and on account of the fact of the carelessness and negligence and improper construction and maintenance of said telephone pole and said electric-light wire in such defective and unsafe condition, and being in close proximity to said telephone pole, the said defendants and each of them were careless and negligent in this, to wit:
“That said telephone pole was an attractive nuisance, and was knowingly built, constructed, maintained and kept in such a manner and way as to become and be attractive to children and particularly to boys of the age, habits and sportive conduct of boys of the age of the deceased, all of which facts, habits and instincts of boys and particularly of the deceased under the circumstances, the defendants and each and all of them had full notice and knowledge, and that they and each of them were careless and negligent in so constructing, maintaining and operating said telephone pole and its appurtenances and said electric-light wire, in such a position and close proximity to each other, and while said wire was so uninsulated and charged with such high and deadly voltage of electricity,' and under such circumstances as to make them each liable in damages to the plaintiff herein for the death of said child.”
The petition also alleges that Clarence M. Edwards was about thirteen years of age; that without negligence on his part he was killed on coming'in contact with the electric-light wire while he was upon the pole; and that both of th,e. defendants knew, or by the exercise of proper diligence should have known, that boys were in' the habit of climbing, and did frequently climb, the telephone pole in question.
1. No act of negligence is alleged to have been committed by the telephone company. It is not alleged that' the pole and the wires attached thereto were not properly constructed, nor that either was dangerous; although it is alleged that, on account of the steps nailed to the pole, it was an attractive nuisance. To state a cause of action against the telephone company, the petition should allege that something which the company did rendered its property dangerous to those who might be upon the pole. The company is not responsible for the negligence of the city, because the company could not do anything to prevent the city from negligently placing or maintaining its electric-light wire. The principle declared in Nicholas v. Street Railway Co., 96 Kan. 699, 153 Pac. 506, is controlling on this question. In that case the city of Topeka had built a defective walk across the street-railway tracks, and this court there said:
“A logical deduction from the cases there collated [Notes in 52 L. R. A. 448, and 15 L. R. A., n. s., 840] is that where the defect in the street is caused by the city as an active agency, and over which the railway company has no control and with which it has no right to interfere, the company is not liable for injuries caused by that defect.” (p. 702.)
2. As against the city, an altogether different proposition is presented by the petition. It definitely and specifically alleges acts of negligence on the part of the city. One act of negligence consisted of placing and maintaining the electric-light wire in dangerous proximity to the pole; another act consisted of the failure of the city to keep its electric-light wire over the telephone pole properly insulated. (Electric-light Co. v. Healy, 65 Kan. 798, 70 Pac. 884; Wade v. Electric Co., 94 Kan. 462, 147 Pac. 63; Wade v. Electric Co., 98 Kan. 366, 158 Pac. 28; Snyder v. Light Co., 98 Kan. 157, 157 Pac. 442.)
In Electric-light Co. v. Healy, supra, this language was used:
“An electric company laid its wires on tbe viaduct of a city street, outside but close to the traveled way, between'which wires and way was a railing or balustrade over which small boys were in the habit of climbing and getting close to the, wires. The wares were defectively insulated, of which fact and of the habit of the boys the company had knowledge. One of the boys, when in the act of climbing, was killed by coming in contact with the uninsulated wrires. Held, that the company is liable.” '(syl. ¶ 2.)
In Snyder v. Light Co., supra, an electric company was held liable for injury to a person who went to the aid of a boy that had been kille.d by an electric current communicated to him through a wire which had been thrown over a defectively insulated electric-light wire maintained by the company. In Railway Co. v. Gilbert, 70 Kan. 261, 78 Pac. 807, this court said:
“A street-railway company that employs electricity as a motive power is required to exercise the highest care to protect persons using the streets from the danger of being injured by the electric current, and is liable for any damages occasioned by its failure to do so.” (syl.)
The principle requiring the highest degree of care in using highly charged electric wires was followed in Electric-light Co. v. Healy, supra, and in Snyder v. Light Co., supra.
To avoid the consequences of its negligence and of the breach of its duty imposed on it, thé city argues that the boy was a trespasser while upon the pole of the telephone company. The boy was a trespasser, but that did not relieve the city from its obligation to protect its wires by proper insulation at places where it should have anticipated that trespassing boys might come in contact with the wires. The petition alleges that the defendant knew, or by the exercise of proper diligence should have known, that boys were in the habit of climbing, and did frequently climb, the pole in question. These facts are admitted by the demurrer. That allegation puts the action against the city under the rule declared in Biggs v. Wire Co., 60 Kan. 217, 56 Pac. 4. There a revolving power shaft rested on the top of a stone buttress or pier in the Kansas river at Lawrence. The shaft was about six inches in diameter, and' had on it a collar or coupling about eight inches in diameter, in the outer rim of which was a set screw that projected some four or five inches. The shaft made from 100 to 150 revolu tions a minute. Because of the rapidity of the revolutions the set screw was invisible. Boys were in the habit of resorting there for fishing and playing, and the company had notice of that fact. The court there said:
“The maintenance of dangerous machinery on private grounds, unprotected from the visits of trespassing children, renders the owner thereof, who has knowledge that children and' others are accustomed to frequent said grounds and climb upon the structures supporting said dangerous appliances, liable in damages to the next-of-kin of a boy fourteen years of age who was caught in said exposed machinery and killed.” (syl. ¶ 1.)
The judgment against the city must be affirmed unless the rule declared in all the cases cited is set asidq.
3. The plaintiff argues that the petition states a cause of action against each of the defendants, on the theory that the telephone pole was an attractive nuisance. The court does not agree with the plaintiff on this question. If a cause of action is stated against either defendant, it is because the petition alleges an act of negligence on the part of that defendant, and because the petition further alleges that* that defendant knew, or by the exercise of proper diligence should have known, that boys were in the habit of climbing the pole.
The judgment against the city of Kansas City is affirmed, and the judgment against the Southwestern Bell Telephone Company is reversed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant, who appeals from a judgment against him in favor of the plaintiffs, argues that the petition did not state facts sufficient to constitute a cause of action for extraordinary equitable relief by injunction, and argues that the court did not have jurisdiction to grant an injunction.
The petition, in substance, alleged that the plaintiffs were the owners of certain real property in Neosho county; that in 1916 they entered into a verbal contract by which they leased that property to the defendant for one-third of the grain raised thereon and for all of the straw — the straw to be left on the land; that the defendant, in the fall of 1916, sowed wheat thereon, which, at the time of the commencement of this action, had just been harvested; that the defendant was about to thresh the wheat; that he refused to account to the plaintiffs for the one-third thereof, and would, unless restrained, convert that one-third to his own use; that the defendant threatened to, and would unless restrained, remove the straw from the land and place it on other land, to the damage of the plaintiffs; and that the plaintiffs had no adequate remedy at law.’ The petition prayed for an injunction against the defendant, enjoining him from selling, disposing of, or encumbering the plaintiffs’ one-third of the wheat crop, and enjoining him from removing the straw. The petition also prayed for the appointment of a receiver, and asked that the plaintiffs be decreed to be the owners of the one-third of the grain and of all of the straw.
The defendant answered, and in his answer admitted that the plaintiffs were the owners of the land, but denied all other allegations of the petition. He afterward filed a motion asking for judgment on the pleadings. He also objected to the introduction of any evidence under the petition and, after judgment had been rendered against him, filed a motion for a new trial. Each of his motions was denied, and his objection was overruled.
The trial was without a jury, and the court found:
“That the averments of plaintiffs’ petition are true, that in the month of September, 1916, the plaintiffs and defendant entered into a verbal contract whereby the defendant was to put out a crop of wheat in the fall of 1916 on the 80 acres of land described in plaintiffs’ petition, and that the plaintiffs were to receive as a share thereof, one-third of the wheat raised on said land and the straw to be left, on the land. The court further finds that in the spring of 1917 and before the wheat was harvested, that defendant repudiated the agreement made with plaintiffs for the share of the wheat and for the straw and was refusing to account to plaintiffs for the one-third share of the wheat and was intending to, and would, had he not been restrained, remove the straw from off the land described in plaintiffs’ petition, with the intention of using it for his own purpose. The court further finds that the receiver appointed herein at the beginning of the action, has made and filed his report herein, which report is confirmed and approved.”
A temporary injunction was granted, and a receiver was appointed. He took possession of the property and sold it. The court further found that, after paying expenses, there was $686.30 in the receiver’s hands, which amount the receiver was ordered to pay to the plaintiffs.
1. The defendant’s argument that the petition did not state facts sufficient to constitute a cause of action for the extraordinary relief of injunction, when analyzed, resolves itself into a complaint concerning the remedy pursued by the plaintiffs. If they had resorted to a landlords’ attachment, or to an action in replevin, and the wheat had been sold, the judgment would have been exactly the same as that finally rendered. There is nothing to show that the judgment was wrong. The wheat had been sold by agreement between the parties, and the money had been brought into court. That money was directed to be turned over to the plaintiffs. If they were the owners of the wheat, the money arising from its sale belonged to them. The form of the action became immaterial.
Section 141 of the code of civil procedure directs that “any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party ’must be disregarded” ; and section 581 directs this court to “disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining, where it appears upon the whole record that substantial justice has been done by the judgment or order of the trial court.” (Culbertson v. Sheridan, 93 Kan. 268, 144 Pac. 268; Hamilton v. Railway Co., 95 Kan. 353, 359, 148 Pac. 648; Elevator Co. v. Harrison, 97 Kan. 289, 292, 154 Pac. 1016; Raedell v. Anderson, 98 Kan. 216, 158 Pac. 45.)
The statutory provisions control, and the judgment should not be reversed on account of an inj unction being granted.
2. The defendant does not argue that the petition did not state a cause -of action. That question was presented to the trial court, and was resolved against the defendant. The petition set out the contract between the plaintiffs and the defendant, the violation of that contract by the defendant, and the right of the plaintiffs to one-third of the wheat and all of the straw. The petition stated a cause of action.
3. The defendant’s argument that the court did not have jurisdiction to grant an injunction resolves itself into an argument, not that the court did not have jurisdiction to grant an injunction, but that the court erroneously granted it. There is no question about the jurisdiction of the district courts of this state in all kinds of injunction proceedings. An injunction may be erroneously granted, but that does not argue that the court did not have jurisdiction to grant it. In the present action, an injunction was granted, possibly ’ erroneously, but the final result was the same as it would have been in any other form of action if the property had been taken into custody by the court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff, under the workmen’s compensation law, recovered judgment for the death of her husband, David E. Lindsay, alleged to have been caused by an injury sustained by him while in the defendant’s employ. The defendant appeals. The contest was over the cause of Lindsay’s death.
The first question argued by the defendant is that' “there was no competent evidence offered to pr.ove that the deceased’s death was caused by an injury, and the demurrer of the defendant to the evidence of the plaintiff should have been sustained.” The only evidence which tended to prove that Lindsay had received qny injury was contained in a report made, apparently, by the defendant to some liability insurance company. A part of the information contained in the report was given by Lindsay to D. T. Davis, an employee of the defendant and manager of the elevator in which it was alleged that Lindsay was injured. At the defendant’s request, Davis obtained the information two days after the alleged accident occurred, and sent the report to the defendant. That report showed that Lindsay stated that he had been injured while he was replacing the driving belt of the elevator, which had become choked; that the belt had slipped off; and that he felt the injury in his bowels. The report contained the following statement: “We believe his explanation above is correct — a strain of-the abdomen by misapplied exertion.” It is argued that, the report was incompetent ; that it was hearsay; that it contained self-serving declarations by Lindsay; and that it was not a part of the res gestes. That part of the report relating to the accident and the nature of the injury sustained by Lindsay was based on information obtained from him. He was the only person that knew about the accident; no other person saw it. If Lindsay had made the report it would have been inadmissible, because it would have been self-serving, and not a part of the res gestee. Neither Davis nor the defendant knew anything about the accident or the injury occasioned thereby, except through information received from Lindsay, although the report did contain statements touching other matters of which both Lindsay and the defendant had actual knowledge. So far as the latter statements were concerned, the report was admissible, but so far as the statements relating to the accident and the injury were concerned it was inadmissible, for the reason that those statements were based entirely on information obtained from Lindsay and were not admissions by the defendant that they were true. The conclusion reached is supported by Englebretson v. Industrial, etc., Com., 170 Cal. 793; C. & A. R. R. Co. v. Industrial Board, 274 Ill. 336; Reck v. Whittlesberger, 181 Mich. 463.
In Railway Co. v. Burks, 78 Kan. 515, 96 Pac. 950, this court held that the reports of railroad car inspectors, regarding the condition of a car coupler, cannot be received in evidence as admissions by the defendant of the facts stated in the reports, unless the reports have been adopted or promulgated in an authoritative way by some official having power to bind the corporation by admissions.
The conclusion reached renders it unnecessary to discuss the other question presented by the defendant.
The judgment is reversed, and the cause is remanded with directions to render judgment for the defendant. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought to recover treble damages for the destruction by defendant of shade trees growing near the line dividing the farms of the parties. The defendant prevailed, as he did on two former trials, and plaintiff appeals.
This is the third appeal in the litigation' and, as the issues and most of the facts have been set out at length in former opinions, it is not necessary that they should be retold. (Collins v. Morris, 97 Kan. 264, 155 Pac. 51; Collins v. Morris, 101 Kan. 135, 165 Pac. 862.) On this appeal, plaintiff assigns error upon the admission of testimony given by a witness as to the location of the trees alleged to have been destroyed. He had assisted in making a survey of the line between the farms of the parties and had noted,the location of the trees in ques-( tion. It appears that there was a dispute as to the line of division and the location of the trees, and there was a claim that a division fence on an agreed boundary had been moved, and had not been rebuilt upon a straight line between established stones of a former survey. The witness, in company with another surveyor, ran the line, and then gave testimony as to the location of the trees. It is contended that as no notice was given of the survey and it was not made by a public official, the testimony was inadmissible. This was not a survey proceeding. The witness had not undertaken to make a statutory survey, neither was he undertaking to .establish a boundary. He made a private survey in -order to show on which side of an established boundary certain trees stood. Although a private survey, it tended to show whether of not the defendant had injured or destroyed trees on the plaintiff’s land and was admissible for what it was worth. (Holliday v. Maddox, 39 Kan. 359, 18 Pac. 299; Schwab v. Stoneback, 49 Kan. 607, 37 Pac. 142; Bain v. Peyton, 80 Kan. 376, 102 Pac. 251; In re Nelson’s Appeal, 88 Kan. 219, 128 Pac. 376.)
There is complaint of some of the instructions given and some of those refused by the court. The issues appear to have been fairly presented, so far as we can determine what the issues were. As the pleadings are not in the abstract, the issues must be gathered from the instructions and the evidence, only a part of which has been preserved.
An instruction given by the court is to the effect that if the owners of adjoining lands agreed upon a boundary and had acquiesced in it for fifteen years, it should be regarded as the established line, and that trees growing on either side of that line would belong to the owners of the respective sides. This was a better statement of the law than the one requested by the plaintiff touching the same subject.
Objection is made to an instruction to the effect that the plaintiff could not recover for any injury to trees standing on the line or partly on both sides' of the line. The plaintiff rightly contends that a tree which is wholly or in part upon the division line cannot be cut or injured by one owner without the consent of the other, and an owner may maintain trespass for any cutting or injury to the tree without such consent. (1 C. J. 1234.) However, the trial court did not undertake to decide what the rights of the parties would be as to trees standing on the line, but based his ruling on the pleadings, saying that:
“The plaintiff is suing for damages to trees which he claims stood wholly upon his side of the line between his land.and that of the defendant, Morris, and you should not in this case allow for any damage which may have been done to trees standing partly on both sides of the line.”
The plaintiff was not entitled to .recover for other, wrongs than those alleged in his petition, and we must assume that the plaintiff’s petition limited his recovery as the court has stated.
No error was committed in denying plaintiff’s request that a witness who had assisted in making the private survey, bring into court a book containing, the public record of purveys. The book was not in his custody and, therefore, he had no more right to take it from the public records than any other stranger. If it was material evidénce in the case, it could easily have been produced by the public officer in whose keeping it was placed.-
There is a contention that the special findings of the jury are inconsistent with the general verdict. Among other findings, the jury found that plaintiff and a prior owner of defendant’s land agreed that a certain fence should be regarded as the true boundary line between the farms; that this line had been recognized as the true line for more than fifteen years before 1912; and that the fence had been maintained on that line during that period. The jury also found that prior to the time of the alleged injuries, the defendant had not made any claim to the plaintiff that the fence or any of the injured trees stood on defendant’s land. There is no necessary inconsistency between these findings and the general verdict. It appears that the fence on the agreed line had been moved in 1912 by a tenant of plaintiff, and this accounts for what might seem to be a conflict in the testimony and findings. Besides, the fact that there was an agreed line upon which there was a fence, and that the defendant did not make specific claim to trees prior to the time the trees were injured, does not conflict •with the general finding that the defendant did not commit the trespass with which he was charged. The findings do not imply that he injured any trees on plaintiff’s land, and there was testimony to the effect that he did not cut or injure any tree involved in this litigation. The fact that he did not present a claim, or assert to the plaintiff- that the fence or trees stood on his land, does not determine where the trees in fact stood. He specifically denied that he interfered with any of the trees mentioned, except one, and that was upon his side of the line. According to his testimony, it is what ,is called a double tree which was on the line; one trunk extended out on plaintiff’s land and the other upon that of the defendant. As the roots of the tree interfered with plowing near it, defendant stated that he undertook to burn and kill the one on his own land. If the trunk burned can be regarded as an individual tree and wholly upon his own. land, he was entitled to dispose of it as he chose, and if the two trunks are to be regarded as a single tree, partly on the land of each owner, it was not within the recovery asked by plaintiff in his petition.
As the record stands, it cannot be held that the findings and verdict are without support.
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The opinion of the court was delivered by
Porter, J.:
Action upon a policy of life insurance by the widow of the insured, who was named as beneficiary. The defense was thut the death of the insured was caused by his suicide. The policy contained the provision. that in case of suicide the liability of the insurance company should be limited to the amount of the premium paid. There was a verdict for plaintiff for the full amount of the policy, $5,000 and interest. A motion for a new trial was overruled, and the defendant appeals. (
John G. McCoy, the insured, signed the application for insurance September 18, 1917; the policy, though dated October 1, -was not delivered until November 3, 1917. The petition alleged that on November 9, 1917, “John G. McCoy died from the effect of a gunshot wound in his head, said gunshot wound being accidentally inflicted by himself, or inflicted by some person unknown, with felonious intent, him the said John G. McCoy to kill and murder.”
The answer alleged that the death was caused by suicide, and the company tendered the return of the note given by the insured in payment of the premium. The reply was a general denial.
The plaintiff rested her case after proving the issuance of the policy, the acceptance of the insured’s note for the premium, and the giving of notice and proof of death. Mr. Alder-son, who was the local insurance agent of the company, testified for the defendant, in substance, as follows: About September 18, 1917, Mrs. McCoy came to his bank in Olathe and inquired about the rates for a $5,000 policy of life insurance upon her husband. He gave her the rates, and on the next morning went to the McCoy home in the country, taking with him Doctor Moberly, one of the local examining physicians for defendant. At that time Mr.- McCoy declined to be examined, and stated he would be in town in a short time. The witness saw McCoy on the street a few days afterwards, and went with him to Doctor Moberly’s office. Mrs. McCoy accompanied them, and the witness explained the policy to both of them. There was one feature of the policy that both Mr. and Mrs. McCoy were particular to inquire about, which was the suicide clause, and they wanted to know what amount would be paid in case of suicide the first year. He explained the suicide provision in the policy to them, asked if they understood it, and they said they did. The same witness and Doctor Moberly both testified that McCoy declined to be examined when they saw him the first time; that Mrs. McCoy insisted he should be examined, and urged him to take out the insurance; that he acted as if he did not want the insurance — said he couldn’t make up his mind, and would let it go until some other time. Alderson also testified that on October 4 he started to the home of the McCoys to make a delivery of the policy and met Mr. and Mrs. McCoy on the road coming to town; that McCoy said he did not want the policy, as it was too much insurance for him, and would be too much of a burden for him to keep up; and that while the witness was arguing with him to induce him to take the policy, Mrs. McCoy insisted that her husband should take out the insurance for her protection and that of their daughter.
Although the petition was framed upon the theory that the insured did not die a natural death, and was either murdered, or killed himself accidentally, the plaintiff made no attempt in her evidence in chief to explain any of the circumstances connected with her husband’s death. McCoy at the time of his death was 51 years old and had no other insurance. He lived on a farm which he rented from his cousin, James McNeal. McNeal testified that he had lived on the farm himself for 47 years; that he had no family; that at the time the McCoys occupied the place he lived in the same house with them, sleeping downstairs; that on the morning of November 9, at about a quarter past five o’clock, Mrs. McCoy came to the door of his room and called him; and that he was already up and dressed. He opened the door, and she said she had heard a phot. She had a lantern in her hand, and she and the witness went out of the house together toward the stable. She then told him 'that she guessed McCoy must have gone up after the horses, and they went to the pasture gate, and then returned to the yard, and she asked him to go and get Mr. Lancaster, a neighbor. When he and Lancaster returned they found Mr. Westhoff, another neighbor, there. Mrs. McCoy, in the meantime, had prepared breakfast, and while the witness was eating, Mrs. McCoy told him they had found McCoy dead. She was not crying and did not seem to be excited or nervous. When she came to his room that morning she did not tell him that McCoy had left the house, but when they had gone toward the stable she said she guessed he had gone out to the pasture after the horses.
Mr. Lancaster testified that when he was at the house Mrs. McCoy told him that they had been looking for her husband for some time. He and Westhoff started out to a straw stack some distance north, and Mrs. McCoy said: “When you find him, I want it understood it is an accident, and not to touch him.” Witness testified that they were then standing in the yard, between the house and the barn, and started north, going about twenty-five or thirty feet when they found the body of McCoy lying five or six feet from a pile of lumber and parallel thereto; no part of the body touching any object; the head to the south and the feet to the north, near a path that runs there. He and Westhoff then started back and met Mrs. McCoy, who asked if they had found him, and they told her they had. She asked where, and when they told her, she started there, whereupon witness advised her not to go, and she said all right, and went into the house. She did not cry at that time, nor appear hysterical, mor make any outward emotion of sorrow — simply turned around and went back to the house. When witness returned, there were other persons there, and he made a more careful examination of the situation. McCoy’s body was lying flat on the back with the arms rather extended, the right arm extended out. There was a wound by the right ear, and it looked as if there might have been powder burns around the wound; there was something dark on the left hand, on the front side of the index finger pointing in to the thumb. There was a single-barreled shotgun lying across one leg; the stock seemed to be at the right of the left foot, the barrel being pointed right across the leg well up near the waist line. There was some blood on the right side over the waist. When the gun was opened, there was a shell in it. The sheriff, who arrived, made a demonstration with the gun in his hand, sitting down on the ground and showing what position a man could get into if he intended to shoot himself. The sheriff sat flat on the ground and took the gun and put the barrel to his ear and reached the trigger with his other hand, holding the muzzle of the gun with his left hand close to the head, and showing he could reach the trigger with his right hand.
Westhoff, the other neighbor, testified that Mrs. McCoy came to his house and asked him to come over immediately, but did not state why she wanted him. He took his lantern and started with her, and on the way back she told him that John had gotten up and that they could n’t find the gun; that she had heard a shot; that John said he was going after the horses, but that the halters were still in the barn, and that she couldn’t find him; and that she then said to him, “If you find him, you must not touch him. The law can handle you for touching a dead person if you find — if he is dead”; that when he and Lancaster, continuing the search, started towards the straw stack, a little distance from the house, Mrs. McCoy said to them: “If anything has happened, remember it is an accident” ; and that she then went back to the house.
The sheriff of Johnson county described the locality where McCoy’s body was found, and testified that the body was lying on the back; that McCoy’s hat lay about six feet northwest of the body; and that there was a-gunshot wound through the head, the shot having entered on the right side, and blood and brains lay scattered about. Up and down between the legs and lying on him was a single-barreled 12-guage shotgun with the muzzle end upwards. McCoy’s left hand lay on his hip, and the other hand was outstretched. There were powder marks on the side of the face, which indicated to the witness that the gun was discharged close to the head, and the left hand was powder-marked between the fingers and thumb, indicating that the left hand was pretty close to the barrel of the gun. The sheriff described the demonstration he made to the others present in order to show that it was possible to discharge the gun and hold it to the side of the head of a person in a sitting position, and testified that it was possible to reach the trigger of the gun with the right hand, so that the gun could be fired in that position.
Doctor Moberly, the coroner, who was one of several local examining physicians of the insurance company, was present when the sheriff made the demonstration, and he and the-sheriff were so well convinced that it was a case of suicide that no inquest was held. The witness Westhoff was also present when the body was found, and he corroborated the other witnesses as to the conditions, the location of the gunshot wound, and the powder burns near the wound in the head, and on the finger and thumb of the left hand.
Mrs. McCoy was called in rebuttal, and testified that on the morning of her husband’s death they got up about five o’clock; that they heard a disturbance out among the chickens; that her husband slipped his clothes on as quickly as he could and went downstairs; that she did not know he was going to take the gun out, or that the gun was gone; that there was a single-barreled shotgun kept in the kitchen behind the door; that about ten minutes after he had gone, the witness'went down and, in the meantime, had heard the report of a gun; that before her husband left the house she heard the chickens “squeaking or fussing”; that the chicken house is northeast from the dwelling house; and that the body was found in the direct line leading from the house to the chicken house, up the path which the husband would have traveled in going toward the chieken house. It was about fifteen or twenty minutes after she heard the noise in the chicken house before she heard the report of the gun. She testified that her husband intended to husk corn that morning and had brought the wagon out and put on the sideboards and greased the wagon the night before; that when Mr. Lancaster., arrived she told him and Westhoff she ha,d heard the discharge of the gun and did not know what had happened, and wished they would look around and see if they could find McCoy; that if they found him not to touch the body, to keep away until the sheriff came; and that the reason she asked them not to touch the body was that she believed the man had been murdered, and she thought if he had been murdered, when the sheriff came, bloodhounds could be brought.
Mr. Alderson testified that about ten o’clock on the morning of McCoy’s death he went to the McCoy home; that he saw the body, and saw Mrs. McCoy; and that he asked her then if she remembered what he had told her in regard to the suicide clause in the policy, and she said that she did. but that “in this case it was an accident.”
There was no conflict in the evidence respecting the conditions and circumstances surrounding McCoy’s death. It is true that several witnesses testified to conflicting statements made by Mrs. McCoy about what occurred when her husband left the house in the early hours of that morning, and that the first story she told was that she thought her husband had gone to the pasture after the horses, until she found that the halters had not been taken from the barn. Other persons she talked to later testified that she said her husband had heard a disturbance among the chickens, and that he went out to discover the cause. In her rebuttal testimony, she did not deny making the statements to her neighbors that in case they found the body to remember that “it was an accident,” nor did she deny making the statement testified to by the insurance agent, Alderson, that, “in this case it was an accident.” Although the testimony concerning her statements was not contradicted, it was for the jury to determine its effect; and, besides, her statements did not establish suicide as the cause of McCoy’s death. At most, they indicated her anxiety not to have any trouble over the insurance.
There is a presumption against suicide, where the cause of death is unknown, and the burden in this case" was on defendant to establish that the insured took his own life. While the evidence would have sustained a finding in defendant’s favor, it was purely circumstantial, and it cannot be said that the verdict was wholly unsupported by the evidence. (Heath v. Life Association, 89 Kan. 634, 132 Pac. 148.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The E. D. Fisher Lumber and Coal Company recovered a judgment against John Robbins for $402.59, from which the defendant has taken an appeal.
It was based on a promissory note executed' by the defendant Robbins to E. L. Dobbins, payable sixty days after date, with interest at eight per cent per annum. Dobbins sold the note to plaintiff, to whom he was indebted, and in consideration of the note he was given credit on his debt to the extent of $150, and besides, he was paid $175 in cash, and upon being asked to indorse the instrument, he signed his name on its face under that of the maker. The plaintiff transferred the note to the Citizens Bank, and the bank noticing that Dobbins had written his name on the face of the note procured him to come in and sign it on the back. Later, and after the maturity of the note, the bank transferred it back to the plaintiff. Defendant set up as a defense that the note was without consideration, because it was given for a monument purchased from Dobbins that had proven to be worthless. Upon the evidence and under the instructions of the court, it was found that the note was transferred by Dobbins to plaintiff in good faith for value before maturity and without notice of any infirmities dr defenses. If the plaintiff was a holder in due course, the note was not open to the defense alleged. Defendant urges that plaintiff does not occupy that position, because Dobbins, the payee, indorsed his name on the face of the instrument instead of upon its back, and that 'therefore the transfer was incomplete. There is little room for contention as to the character of the transfer. The instrument was negotiable in form, and the signature ’of Dobbins upon the paper was necessary to a transfer. The note itself indicated that the primary relation of Dobbins to the note was that of an indorser. He being the payee, an indorsement by Dobbins was not only contemplated but was necessary to a transfer of title. The writing of his name, therefore, on the instrument, and its delivery to another, implied a purpose to transfer title by indorsement to the transferee, and not the making of a promise of payment to himself nor to assume the liability of a maker. Although indorsements are customarily written on the back of notes, the writing of them there is not essential to a valid transfer. The negotiable-instruments law does not require it, nor does it specify on what part of the instrument the signature shall be written. It is not even required that it shall be placed on the instrument itself. That act provides:
“The indorsement must be written on the instrument itself or upon a paper attached thereto. The signature of the indorser, without additional words, is a sufficient indorsement.” (Gen. Stat. 1915, § 6558.)
As the indorsement was .written on the instrument itself, there was compliance with the requirements of the act, and the relation of Dobbins to the instrument, together with his signature, implied that he signed it as an-indorser, and not as a maker. (Kistner v. Peters, 7 L. R. A., n. s., 400, and note; 3 R. C. L. 969.) If more was necessary to establish the relation of Dobbins to the note and the capacity in which he wrote his name on it, it is supplied by the placing of his name on the back of the instrument a few days after the first indorsement was made, and long before it was due.
Complaint is made of the admission of testimony to the effect that Dobbins had signed his name on the note in the capacity of indorser with the intention of transferring the title of the note to the plaintiff. If there had been ambiguity as to the relation of Dobbins to the paper, oral evidence might have been admitted to show the intention of the parties and his real relation to the paper, but since the note itself implied that he was an indorser, no oral testimony was necessary, and since the oral testimony was consistent with the tenor of the note and the implied relation of Dobbins, no prejudice could have resulted from the testimony.
Some questions are raised as to the consideration of the note, but the plaintiff being a holder in due course, the note is deemed to have been issued for a valuable consideration; and besides, the testimony shows a full consideration for the transfer, in that it was transferred in part for a preexisting debt from Dobbins to plaintiff and for money paid to him. (Gen. Stat. 1915, §§ 6551, 6552.) Although questioned, the transfer of the note from the plaintiff to the bank amounted to a commercial indorsement. It was an assignment without limitation and also a guaranty of payment, and this has been held" to pass title to the paper the same as a blank indorsement, as well as a guaranty of payment. The note being negotiable in form, the writing constituted a commercial indorsement which passed full title to the note free from equities as between the maker and the payee. (Kellogg v. Douglas Co. Bank, 58 Kan. 43, 48 Pac. 587; Farnsworth v. Burdick, 94 Kan. 749, 147 Pac. 863.)
The plaintiff being a holder in due course as the result of the original transfer, the subsequent holders acquired the rights of plaintiff, and took the note with like immunity from defenses, although some of the subsequent transfers may have been made after the note became due. It has been decided that:
“When promissory notes pass into the hands of an innocent holder for value before maturity, all equitable defenses are cut off; and although the assignee of such holder had notice of the original infirmities of the notes, he takes by assignment all the rights of his assignor and can recover on the notes whether he acquires them before or after maturity.” (Underwood v. Fosha, 96 Kan. 240, syl. ¶ 3, 150 Pac. 571.)
The questions discussed were raised mainly upon the instructions of the trial court, and these have been met without quoting the instructions challenged. It is enough to say that the defendant has no cause to complain of the instructions given, nor has he shown any substantial errors in the record.
The judgment is affirmed. | [
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The opinion of the court was delivered' by
Burch, J.:
This is a second appeal. The general nature of •the controversy is indicated in the former opinion, Pickens v. Campbell, 98 Kan. 518, 159 Pac. 21. On return of the cause to the district court a trial occurred which resulted in judgment for the defendants. The plaintiffs appeal.
The chief subject of dispute was the nature of the uninventoried real-estate contracts, the real estate itself having been scheduled as such. In the former opinion it was said:
“Ordinarily the right to the purchase price of land, contracted to be sold but not conveyed at the time of the Vendor’s death, passes to his personal representative- and not to his heirs. (Gilmore v. Gilmore, 60 Kan. 606, 57 Pac. 505; 18 Cyc. 187; 11 R. C. L. 124; Note, 57 L. R. A. 646.), The petition contains nothing to suggest a different rule here, but if the' evidence should show that the administrator believed that the notes therein referred to followed the rule .of real estate and became the property of the widow, no statements made by him in good faith by reason of that- belief, however incorrect from a legal point of view, would warrant a reopening of the administration.” (p. 522.)
As the quotation indicates, the precise nature of the contracts was not disclosed by the petition, and from certain ambiguous statements it was inferred that notes were given for the purchase price. It appeared at the trial that such was not the case, and that in each instance the only writing consisted of a contract in the following form:
“Witnesseth, That said party of the first part [F. Fensky], for the consideration hereinafter mentioned, covenants and agrees to sell and convey unto said party of the second part [the purchaser], his heirs and assigns, all the following described real estate situated in the county of , Shawnee and state of Kansas, to wit: [Description of property].
“In consideration of which, said party of the second part covenants and agrees to pay unto the said party of the first part, for the same, the sum of [amount], as follows: [Terms of payment]. And said party of the first part, on receiving said sum and sums of money, at the time and in the manner aforementioned, shall at his own expense execute and deliver to said party of the second part a good and sufficient warranty deed. . . .
“It is further agreed between the parties to these presents that said party of the second part shall pay all taxes or assessments becoming chargeable to or upon said premises after this date; and if default be made in fulfilling this agreement, or any1 part thereof, by or on behalf of said party of the second part, this agreement shall, at the option of said party of the first part, be forfeited and determined, and said party of . the second part shall forfeit all payments xnade by him on the same, and such payments shall be retained by said party o.f the first part in full satisfaction, and in liquidation of all damages by him sustained, and he shall have the right to reenter and take possession of said premises.”
If the real-estate contracts were not personal property, they had no place in the personal-property inventory, the administrator’s motive in omitting them from the inventory was not material, the plaintiffs had no interest,in them, and the main foundation of the suit fails.
It will be observed that the form of contract used was not one of present sale; it was one to sell. No obligation on the part of the vendor to convey arose except on receiving the stipulated sums of money, at the time and in the manner specified. In case of default, the right to forfeit and to reenter was expressly reserved.. The forfeiture clause is identical with that appearing in the contract considered in the case of Drollinger v. Carson, 97 Kan. 502, 505, 155 Pac. 923. It was there said that such provisions are sometimes held to make time of the essence of the contract, citing 39 Cyc. 1369, 1370. It was not necessary to declare that such was the effect in that case, because after default of the vendee the vendor made time essential by demanding payment within a stated period, under penalty of forfeiture. That is just what the contract under consideration did at the beginning of the relations between the vendor and the vendee. Title was withheld; performance by the vendee at the time stipulated was a condition precedent to' the acquisition of title; default entailed forfeiture of payments already made, and right of possession; the vendor was then at liberty to reenter or to invoke the remedy of ejectment; and insertion of the formula, “Time is of the essence of this contract,” would have been superfluous.
In the case of Douglas Co. v. U. P. R. W., 5 Kan. 615, the! contract did not contain a statement that time of performance by the vendee was an essential element, but the court said:
“It is true that the company had made a conditional purchase of this land, but they were not to receive the patent therefor until all the conditions of the purchase were fulfilled; and if any one of the conditions were violated . . . they were to forfeit all their right, title and interest in and to said land, and it was then to be sold to other parties. It will be perceived from the very nature of this contract, and from the character of the parties to the same, that time was an essential ingredient of the contract. The contract was purely executory, and it was not intended that the government should be bound to execute its part of the .contract, by parting with any portion of its land, unless the railroad company should fulfill every portion of its part of the contract. first — and strictly within the time stipulated. It was not intended to have any lawsuits over the matter.” (p. 621.)
In this case most of the lots were sold for small payments to be made during considerable periods of time, and it is quite clear that Ferdinand Fensky intended to forstall lawsuits by requiring purchasers to accept contracts which provided for strict performance, under penalty of forfeiture. The result is, the contract is identical in all its legal aspects with the contract considered in Brown v. Thomas, Sheriff, 37 Kan. 282, 15 Pac. 211, and the vendor continued to be the owner of the land. In the opinion in the case just cited it was said:
“The maxim that equity considers that when land is sold on credit, and the deed is to be made when the purchase money is paid, that the land at the time of the purchase becomes the vendee’s, and the purchase money the vendor’s; that the vendor becomes the trustee of the vendee with respect to the land, and the vendee the trustee of the vendor with respect to the purchase money, is not applicable here. . . . The legal title has not passed to him [the vendee], because no deed or other conveyance has yet been made; and the equitable title has,not passed, because the land has not been paid for, and because — on account of the provisions for forfeiture — it is clearly the intention of the parties, as indicated in the contract, that such title shall not pass until the land is paid for.” (p. 286.)
The plaintiffs rely on the case of Gilmore v. Gilmore, 60 Kan. 606, 57 Pac. 505, which was cited in the former opinion under the circumstances which have been stated. In the Gilmore case notes were given for the purchase price, time of perform anee was not an essential element of the contract, and no provision was made for fprfeiture in case of default.
The plaintiffs cite the case of Williams v. Osage Co., 84 Kan. 508, 114 Pac. 858. In that case the court expressly stated that the contracts involved differed materially from the contract considered in the Brown case, and quoted from the Douglas county case to illustrate the differences. The first contract in the Osage county case provided for a cash payment of $500, a payment of $2,000 on March 1, 1907, and a payment of $2,000 on March 1 annually thereafter until the full price of $12,000 was paid. Time was made of the essence of the contract and right of forfeiture was reserved, with respect to the payment due March 1, 1907, only. The litigation concerned the status of the contract in 1908, the vendor making no claim of default or ground for forfeiture occurring in March, 1907. The second contract involved in the Osage county case not only did not provide for forfeiture, but it expressly provided that in case of default the vendor might take such steps to enforce it as he saw fit.
The plaintiffs say the Brown case should be overruled. The court is entirely satisfied with the decision in the Brown case, but if it were not, it would hesitate to overturn a rule of property first announced in the Douglas county case in 1870, and recognized as late as 1911 in the,Osage county case.
The record in the case vindicates not only Mr. Campbell’s ability as a lawyer, but the good faith of his conduct and his sagacity as a business man. On September 4,1903, John V. B. Goodrich, an attorney of San Pedro, Cal., wrote Mr. Campbell a letter advising him of Mr. Fensky’s death and intestacy while resident in California, stating that Mr. Goodrich had been employed by Mrs. Fensky to settle the estate, and on behalf of Mrs. Fensky requesting Mr. Campbell to act as administrator of the portion of the estate situated in Kansas. On September 8, Mr. Campbell replied, consenting to act as administrator. He was already familiar with the Fensky interests here, and at the threshold of the contemplated administration was the question of what was real estate, descending to the widow according to the law of Kansas, free from interference by the administrator, unless needed for payment of debts, and what was personal property, to be inventoried and ad ministered, but finally to be distributed according to the law of California. So far as known, Mr. Campbell had never even heard of Mr. Goodrich before, and writing as one lawyer to another, he said:
“Of course all his real estate here will go to her under, our statute, but I suppose all his personal property, which will include all notes and mortgages, will descend under the law of California. Is not that your understanding?
“An administrator here is quite necessary in view of the many mortgages and land contracts he left . . ., and if the administrator can act in the capacity of agent generally for her, it would simplify matters and perhaps be less expensive.
“Give me your views of Mrs. Fensky’s relation to the land and lot contracts for deed; if she is now the sole owner of the lands, and I think (without investigating the question) that she is, ought she not either to make new contracts in her own name, of give deed and take back mortgages for balances of 'purchase money? . . .
“Is it at all probable that the brothers and sisters will make any claim to the contracts for deeds for property here? As soon as I am appointed administrator I will be beseiged, and I want to know your views on some of these important questions before expressing my opinion.”
On September 14, Mr. Goodrich replied, and, among other things, said:
“You ask me to give my views of Mrs. Fensky’s relation to the land and lot contracts for deeds. My opinion is that Mrs. F., under your laws, is now the sole owner of said lands. . . .
“In relation to the brothers and sisters making any claim to the contracts for deeds, Mrs. F. says that she cannot tell what they will do; but so far as the personal property is concerned, and also the land here, I'have advised her to compromise with and get their receipts in full for what interest they may have in the estate. If you have any suggestions to make along the line of such a compromise, please do so, and assist us in bringing the same about.”
On September 18, Mr. Campbell wrote Mr. Goodrich as follows:
“I agree with you that land contracts for deed are not personal property, but that Mrs. Fensky is the sole heir at law and now the sole owner in fee of all the Kansas real estate, including that contracted to be sold,' but subject, of course, to debts, if any, of deceased, and the rights of contracting purchasers, and thus we will treat the matter.
“So far as the real estate here is concerned, she became absolute owner of it in fee upon her husband’s death; and without reference to any pro bate proceedings, whether an administrator was appointed or not, she can do as she pleases with it, subject all the time and only to the claims of "creditors, and we all know there are no creditors.
“I think your idea of having Mrs. Fensky buy out the other heirs is a good one. It will simplify matters and shorten up the proceeding.”
It thus appears that both lawyers, each acting independently of the other and on his own judgment, arrived at the same conclusion respecting the "status of the real-estate contracts. There is not the slightest doubt that each one expressed his honest opinion. Both men were right, and in settling with the heirs, representations as to the nature and value of the distributable estate were neither false nor fradulent, because the real-estate contracts were not recognized as part of the personalty.
Having determined that the contracts were not personal property, and that the land affected belonged to the widow, Mr. Campbell exercised great prudence in preventing information respecting them from being noised about. To be blunt about it, he sedulously concealed their existence, as far as he could, and for the soundest business reasons. The circumstances were such that it would have been financially disastrous to involve the contracts in litigation. Covetous relatives of the deceased, with everything to gain and nothing to lose, and possibly having exaggerated notions of Mr. Fensky’s wealth, would be likely to find lawyers who would institute speculative suits-for them, just as occurred ten years later. As administrator, Mr. Campbell occupied no relation of trust or confidence toward distributees of personalty, with respect to real estate owned by the widow. He rested under no duty to such distributees to produce the contracts or to give information or advice concerning them; and the remarks of the learned trial judge, in a written opinion filed in connection with the decision of the case in the district court, are pertinent here:
“The matter of the character of Fensky’s interest in these properties in Shawnee county was open for the investigation of any of the heirs. It was in fact investigated by Fred Fensky of Leavenworth, and by his attorney, and after such investigation the attorney evidently came to the same conclusion Campbell did. ...
“Would a court be warranted in holding that Campbell was guilty of fraud under such circumstances? Unfortunately, before the trial of this cause he died. He is not here to tell his side of the story. It appears that he was a law? er in good standing at the bar for many years. Aside from any facts shown in evidence as to his uprightness, this court must presume, under the well-known rules of law applying to fraud, that he was honest and that his dealings were in good faith. It would be an unjust thing to blacken his character by a finding of fraud on his part because he believed that under the law this property belonged to Mrs. Fensky, and acted upon that belief. This court will not give. support to so unjust a contention.”
The conduct of Mr. Campbell with respect to some other matters was criticised. It is not necessary to discuss the evidence. The court concurs in the conclusion reached by the district court, that the evidence was entirely insufficient to convict Mr. Campbell of fraud or any bad faith in connection with the Fensky estate, hr otherwise, and that the action was without merit.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This action comes to this court on appeal from an order sustaining the defendant’s demurrer to the plaintiff’s evidence. That evidence showed that on June 19„ 1915, the plaintiff entered into a written contract with the defendant, by which the plaintiff sold to the defendant an elevator at Bogue for $5,000, $2,500 of which was to be paid on. July 1, 1915, and the remainder on August 1, 1915. By that contract the defendant agreed:
“To weigh, dump, elevate and load into cars when requested any part or all of the wheat, shelled corn, or other grains belonging to party of the first part, or to Oliver Munson and raised on land belonging to either of them and delivered at the elevator and second party also agrees to carefully clean out, prepare and repair for loading the cars into which the said grain is to be loaded so that no dirt shall remain in said ears and that all holes and places liable to leak grain shall be securely covered with burlap or lumber and also the side and openings or doorways in said cars shall be securely closed for at least twelve inches above the level of the grain when loaded, the doors furnished by the railroad company for this purpose being doubled and securely nailed and securely covered around the ends with burlap so that grain cannot leak out in shipping and for the performance of the above service, second party shall receive from the party for whom the service is rendered the sum of three-fourths of one cent per bushel for the grain so handled. The grain elevated and loaded under the above provisions shall be carefully weighed into the cars through the bin elevator weigher and an accurate record shall be preserved of the amount weighed into each ear so that in case it becomes necessary to enter a claim for leakage or for any other purpose, the amount of the grain shipped in each such car with date of weighing and number of car can be correctly established.”
The contract further stipulated that:
“The party of the second part will as far as possible keep the wheat or other grain of the first party or Oliver Munson in a bin by itself, if, however, the parties of the second part shall need the room or bin occupied by wheat of the first party, then the parties of the second part shall dispose of said grains and shall return to the party of the first part, ihe same number of bushels of the same grain, of the same grade and "test.”
The evidence further showed that in the fall of 1915 the plaintiff hauled to the elevator wheat which the defendant refused to .receive, and which the plaintiff was then compelled to dump on the ground; that a part of that wheat was spoiled and part of it was lost; and that the plaintiff was compelled to pay out sums of money for material and labor to protect the wheat from the weather, and was compelled to pay out other sums of money to remove the wheat from the ground.
1. The principal question presented by the plaintiff arises out of the interpretation of the contract. The plaintiff argues that the contract obligated the defendant to handle the plaintiff’s wheat on the terms named therein. The defendant contends that the contract was unilateral, in that it did not bind the plaintiff to deliver his wheat to the .defendant’s elevator, and that, therefore, the defendant was not under any obligation to receive the plaintiff’s wheat. The defendant argues that the contract is capable of separation into two parts, one of which concerns the sale of the elevator, and the other of which relates to handling grain for the plaintiff by.the defendant; that the consideration received by the plaintiff for the elevator was the money paid by the defendant; that there was no consideration for the promise made by the defendant in the contract to handle the plaintiff’s wheat; and that, therefore, that part of the contract is unenforceable. The defendant’s argument is not sound. 1 When the plaintiff sold the elevator to. the defendant he received, as the consideration therefor, the defendant’s promise to pay $5,000, and his promise to render certain service for a stated compensation. That service the defendant refused to render, although, for the promise to perform it, the defendant had received the elevator from the plaintiff. While the contract consisted of two parts, either of which could be obeyed and the other be violated by the defendant, and for the violation of either part the plaintiff could recover the damages sustained by him; yet a part of the consideration for handling the plaintiff’s grain had been received' by the defendant when it took over the elevator.
2. The defendant argues that it “did not promise to procure cars in which to ship plaintiff’s grain, and plaintiff did not himself furnish cars for it”; that “it would be a strained con struction placed upon the contract to hold that defendant promised tó do more than prepare the cars as it promised, weigh and load the wheat as promised, and keep an accurate record of weights as promised”; and that “it follows then that if the contract had been enforceable the defendant would not have violated it when plaintiff failed to furnish it cars in which to load his wheat.”
The defendant’s answer alleged:
“That since the 10th day of June, 1915, whenever defendant had elevator room or could obtain cars in which to place plaintiff’s grain, defendant has received and loaded grain for plaintiff; and this defendant has done, not because it is bound legally to do so, but because of a promise so given plaintiff by defendant, as stated in Exhibit “A” of plaintiff’s petition. . . . That although not legally bound to receive the wheat, for the damage in handling which plaintiff seeks to recover in this action, it would have received and loaded same but for its inability so to do, because its elevator was already filled, because it had no other place in which to store said grain of plaintiff, and could not obtain cars in which to load said wheat; of all of which facts, and conditions, defendant notified plaintiff before plaintiff hauled any of the wheat for which plaintiff claims damages of defendant.”
The plaintiff’s evidence showed that the defendant attended to ordering the cars; and that practically all of the wheat that had been dumped on the ground was finally received by the defendant and by it loaded into cars that it had ordered. The plaintiff, in his abstract, states that:
“The legal proposition' involved is this: Is the contract set out as Exhibit ‘A,’ invalid because unilateral? The court held that it is.”
On the subject under discussion, the contract is ambiguous;it does not in terms bind the defendant to furnish cars for the plaintiff, but it does obligate the defendant “to weigh, dump, elevate and load into cars when requested” any part of the plaintiff’s wheat. That cannot be done without cars. They must be ordered by some one. It is not a strained interpretation of the contract to say that, under its terms, the defendant should order the cars. The evidence did not show that the plaintiff furnished cars. The transcript of the evidence shows that the defendant was seeking to avoid the contract on the ground that it was not binding on the defendant because it was unilateral. The answer shows that the defendant understood that it should order the cars; that it refused to receive the plaintiff’s grain, not because cars had not been furnished by the plaintiff, but because its elevator was filled, and it could not obtain cars in which to load the wheat. The evidence showed that, at the trial, the defendant interpreted the contract in the same manner as it was interpreted in the answer.
In Brick Co. v. Bailey, 76 Kan. 42, 90 Pac. 803, this court said:
“Where certain terms of a contract are ambiguous, but such terms have been construed and acted upon by the parties interested, such construction will be adopted, even though the language used may more strongly suggest another construction.” (syl. ¶ 3.)
(See, also, Baxter Springs v. Light Co., 64 Kan. 591, 68 Pac. 63; Water Co. v. City of Beloit, 91 Kan. 665, 672, 139 Pac. 388; Kanzius v. Jenkins, 98 Kan. 94, 97, 157 Pac. 417; 13 C. J. 546.)
From the contract, from the answer, from the evidence, and from the interpretation of the contract by the parties, the court concludes that it was the duty of the defendant to order the cars in which to load the plaintiff’s wheat.
3. The defendant insists that there was no evidence to show the amount of the plaintiff’s damage. A summary of the evidence concerning the damage sustained by the plaintiff has been made, and the court is of the opinion that the evidence was sufficient to compel its submission to the jury.
The demurrer to the evidence should have been overruled. The judgment is reversed, and the cause is remanded for trial. | [
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The opinion of the court was delivered- by •
Mason, J.:
Daisy Thomas, an employee of the Proctor & Gamble Manufacturing Company, about 17 years of age, recovered a judgment against her employer under the workmen’s compensation law, and the defendant appeals.
The principal question involved is whether the plaintiff’s injury was one arising out of and in the course of her employment. A suggestion is made that it did not result from accident, but the occurrence relied upon seems clearly to fall within the definition of that term. The evidence in behalf of the plaintiff tended to show these facts: She had been working for the defendant a little over five months. Her hours were from 7 to 12 and from 12:30 to 5:30, except on Saturdays, when she did not work in the. afternoon. She was paid by the hour. Her custom was to take her lunch with her and eat during the interval between noon and 12:30, which was allowed for that purpose, in the room where she worked, with the other girls in her department, seven or eight in number. The eating of lunch generally occupied about fifteen minutes. In the remaining fifteen minutes the girls, including the plaintiff, were in the habit of amusing themselves by riding on a small truck used in their department to pull boxes on. The girls had asked the foreman of this department if they could do this, and he had told them they could, but to be careful, and that he did n’t want any men up there. He knew of the practice and did not object to it; nor did any other representative of the company. During the noon half hour the girls were at liberty to go where they pleased. They hardly ever went down to the restaurants, however, because of the shortness of the time; if they did so they had to run in order to be back by 12:30. On the day of the accident one girl was drawing -the truck, while the plaintiff with two others were kneeling on it. They had ridden from the powder room, where they worked, into the wareroom, and were near the door between the two on the return trip when in turning a corner the truck slid and one girl jumped off. The other two fell to the floor, the plain- ■ tiff receiving injuries to her knee and ankle. This was a few minutes before 12:30.
The evidence for the defendant tended to show these facts: The company had a lawn and recreation ground, about an acre in extent, fenced in with its buildings, and five or six acres outside, including a ball ground, all of which were accessible to the employees when not at work. The defendant had no control over them during the noon intermission. Usually at this time half of the girls went down to a restaurant on or near the factory premises. The work of the girls in the plaintiff’s department was putting paper boxes on the powder machine. They had nothing to do with the trucks, which were handled by men. The assistant superintendent had cautioned the plaiptiff against using the trucks, telling her that it was .against the rules and very dangerous. He knew the girls had :ridden on the trucks, and he and other representatives of the ■company frequently warned them against the practice. The ¡subforeman of the powder room (called the foreman by the ■plaintiff) had no authority to permit the girls to use the trucks .as playthings. All the foremen'were instructed to prevent the girls from getting on the trucks.
1. The conflict of evidence as to the attitude of the company toward the girls’ practice of playing with the trucks must of course be resolved in favor of the plaintiff. In order for the judgment to be upheld the evidence must have warranted two findings — that the plaintiff was injured'in the course of her employment, and that the injury arose out of her employment. .The fact that she was working by the hour and ¿hat the accident took place out of working hours does not conclusively establish that it did not occur in the course of her employment. The shortness of the intermission suggests that it was. the expectation that most of the employees would remain on the premises, and the practice shown by the evidence confirms this. The purpose of the plaintiff and her associates in'remaining in the factory after their lunch had been eaten was presumably to be on hand when work commenced, in ■order that there might be no delay — a matter in which the employer had an obvious interest. Their situation was quite like that of. a workman who arrives at the factory and is fully prepared to begin work a few minutes before the whistle blows. In the leading English case on the subject, which has been frequently cited with approval in this country, the scope of the decision was fairly indicated by this language of the headnote :
“A workman was paid by the hour for the number of hours per week that he was actually engaged on his work, not including the mid-day dinner hour. During that hour he was at liberty to stay and take his meal on the premises, or to go elsewhere. He stayed oh the premises, and sat down to eat his dinner, and while so doing a wall fell upon him, and he was injured. . . . Held, that during the dinner hour there had been no break in the employment of the workman, and that he was entitled to claim compensation.” (Blovelt v. Sawyer, 1 K. B., 1904, 271.)
In the opinion of the Master of the Rolls the whole situation was gone over in these words:
"On the evidence as it stands on the judge’s notes I should have felt no difficulty, because it would appear prima facie to indicate that the man was in his master’s employment during the whole of each day, from the time at which he went to his work to the time when he came away, and equally during the dinner hour, if he stayed, as during any other part of the time. He would be there on the contract with his master during all those hours, either directly in order to do that for which he was employed or for some purpose ancillary thereto. That would embrace all his movements within the ambit of the factory, going or coming or stopping there for any purpose ancillary to his work. But we are told that there were admissions made between the parties, which do not appear on the judge’s note, that men in the position of the applicant were not paid by the day or week, but the hour, and that the dinner hour was excluded from the computation of his wages, and was not a time during which he was earning pay. That creates a difficulty, or, at all events, requires consideration. It seems to me', however, that if the dinner hour can be brought in as part of the time which is given by the workman for some purpose ancillary to his work, such as feeding himself, which is, of course, essential to enable him to do his work, it would be taking too technical a view to say that the pause in the actual course of his work for the purpose of eating his dinner was a break in his employment from the time that he stopped work to the time at which he began again. It seems to me that, notwithstanding what is alleged as to the payment being for the hours in which the applicant was actually engaged in work and not for the time in which he took his meals, we must take a broader view, ánd treat him as continuing in the employment of the master by the consent of the master, inasmuch as it is for the master’s advantage that the workmen should have an opportunity to feed themselves. A workman would do his work all the better by taking his meal at that time, and if it is part of the contract between him and his master that he may do so upon the works instead of going away, that may be a matter of mutual convenience. A man might, for instance, live at a distance, and it might be desirable, from the master’s point of view, that he should not tire himself by going to and fro for his food instead of reserving his strength for his work. It does not seem to me that, as a matter of law, it can be said that, when sitting down to his dinner, the applicant had ceased to be in his master’s employment. From the mere facts that he was not paid for this particular time and that he was not engaged in the main purpose of his work it cannot, as a matter of law, be said that he had ceased to be in the employment of his master.” (p. 273.)
One of the Lords Justices said: ,
“It also appears that he was not obliged to leave the place where' he was working and obtain shelter and food elsewhere. That being the case, how can it be said that this accident did not occur in the course of-his employment?” (p. 275.)
Another added
“In my view it can make no difference if the fact is that by the terms of the particular engagement the workman was to have the right, if so minded, to get his dinner on the employer’s premises. I think it would be to place a narrow construction on the act if we held that the accident to-the applicant did not occur in the course of his employment.” (p. 276.)
Of an employee who during the noon intermission, after eating his lunch on the premises, fell into the river and was drowned, it has been said:
“All the circumstances and facts tend to show that up to this time he expected to resume his work when lunching time had expired, and hence he was within the scope of his service when walking at this place.” (Milwaukee Western F. Co. v. Industrial Commission, 159 Wis. 635, 642.)
Other expressions bearing on the matter are:
“The relation of master and servant, in so far as it involves the obligation of the master to protect the servant, is not suspended, during the noon hour,- where the master expressly, or by fair implication, invites his servants to remain on the premises in the immediate vicinity of the work.” (Bradbury’s Workmen’s Compensation, 3d ed., 524.)
“As directly applied to the noon intermission, it is a long and well-settled rule that the service tie, or contractual relations and obligations between master and servant, is not broken by such suspension of all activities directly beneficial to the employer.” (Haller v. City of Lansing, 195 Mich. 753, 758.)
(See, also, Boyd’s Workmen’s Compensation, § "481; 1 Honnold on Workmen’s Compensation, § 111; 172 N. Y. Supp. 724; Racine Rubber Co. v. Industrial Commission, 165 Wis. 600; Griffith v. Cole Bros. et al., 165 N. W. 577 [Iowa]; Riley v. Cudahy Packing Co., 82 Neb. 319; In re Sundine, 218 Mass. 1.)
We conclude that there was room for a finding that the plaintiff’s injury occurred in the course of her employment. If it had been the result of some accident which was due to the physical conditions under which the work was performed — say to the falling of plaster in the room where the girls were playing — this would be quite obvious, and the judgment for the plaintiff would clearly be warranted.
2. Whether the plaintiff’s injury arose out of her employment is a more difficult question. Injuries received in play are not usually capable of being so classified. Two illustrative cases are reported, passed upon by a commission and a committee of arbitration, which aré in some respects quite similar to that under consideration. (Socquet v. Connecticut Mills Co., Conn. W. C. C. C. Digest, 1914-1916, p. 653; Thompson v. W. L. Douglas Shoe Co., 2 Mass. W. C. A. 145.) If the present case is to be taken out of the general rule it must be upon the ground that the habit of the girl employees to play with the trucks during the noon intermission, with the knowledge and express consent of the foreman, and without objection by any one representing the defendant, made such practice one of the conditions under which the business was carried on, upon much the same principle as employers are.held liable for the results of horseplay which has grown into a custom. (White v. Stock Yards Co., ante, p. 90, 177 Pac. 522.) Injuries have been held to arise out of the employment whenever they are “such as the character of the business or the conditions under which it is carried on make likely, and the result either was or should have been in the contemplation of the employer.” (Jacquemin et al. v. Turner & Semour Manufacturing Co., 103 Atl. 115 [Conn.].) The plaintiff’s participation in the use of the truck would not seem necessarily to bar her recovery, her conduct being of a kind to be expected in girls of her age, and the question of her want of care not being material, the action not being founded on her employer’s negligence.
The trial court gave an instruction to the effect that if the plaintiff was injured as a direct and natural result of a risk reasonably incident to the employment in which she was engaged, it must be considered as arising out of and in the course of her employment. This is complained of, but substantially the test proposed has often been approvéd. (Challis v. London and South Western Railway, 2 K. B., 1905, 154, 157; Brice v. Edward Lloyd, Limited, 2 K. B., 1909, 804, 810; Holland-St. Louis Sugar Co. v. Shraluka, 116 N. E. 330 [Ind.]; Pace v. Appanoose County, 168 N. W. 916 [Iowa]; Hulley v. Moosbrugger, 88 N. J. L. 161. See, also, Benson v. Bush, ante, p. 198, 178 Pac. 747.)
In a case in which the decision was against the employee the general rule was thus stated and illustrated:
“The same right to compensation will follow if an injury arising from a risk of the business is suffered while the employee is doing something which, although quite outside of his obligatory duty, is permitted by his employer for their mutual convenience, such as eating his dinner on the premises or any similar act to the performance of which the employer has assented.
“In the present case the commissioner has found in substance, if not in words, that the employer knew of his employee’s custom of heating bottles in the dry room at the mouth of the hot-air pipe, and, upon principles familiar to courts before compensation acts ’ were invented, the right to so heat bottles became, by the tacit consent of the employer, a term or condition added to the contract of employment; so that, if the injury, which clearly arose from a risk of the business, had occurred while the claimant was engaged in heating his bottle at the customary time and place, he would doubtless have been entitled to compensation.” (Mann v. Glastonbury Knitting Co., 90 Conn. 116, 120-121.)
In a case where during the noon hour an employee was found crushed by an elevator it was said:
“The deceased was required to take his lunch to the plant with him and was permitted and expected to eat it upon the premises. No particular place was assigned to any of the employees to eat their lunch, but each man wa,s permitted to eat it wherever he desired about the plant. All the employees used the elevator during the lunch hour as they had occasion to, just as they used it during the hours the plant was in operation. Whether the deceased was negligent in his operation of the elevator, or in attempting to get off while it was in motion, is immaterial. . . . The proof amply sustains the finding that the accident arose out of and in the course of the employment.” (Humphrey v. Industrial Commission, 120 N. E. 814, 816, 817 [Ill.].)
A workman has been allowed to recover under the compensation act where he caused an explosion by lighting his pipe near a gasoline can in a tool house to which he had gone to eat his dinner, having violated no rule and not knowing of the presence of the vapor. (Haller v. Lansing, 195 Mich. 753.) In Dzikowska v. Superior Steel Co., 103 Atl. 351 [Pa.], the employee was permitted to recover where he set fire to his oily apron while lighting a cigarette; and in Whiting-Mead Commercial Co. v. Industrial Accident Co., 173 Pac. 1105 [Cal.], an employee’s injury, due to his setting fire in the same way to a turpentine-soaked bandage on his hand, was held to fall within this rule, quoted from another case:
“Such acts as are necessary to the life, comfort and convenience of the servant while at work, though strictly personal to himself, and not acts of service, are incidental to the service, and injury sustained in the performance thereof is deemed to have arisen out of the employment. A man must breathe and occasionally drink water while at work. In these and other conceivable instances he ministers unto himself, but in a remote sense these acts contribute to the furtherance of his work. . . - That such acts will be done in the course of employment is necessarily contemplated and they are inevitable incidents. Such dangers as attend them, therefore, are incident dangers. At the same time injuries, occasioned by them are accidents resulting from the employment.” (Archibald v. Compensation Commissioner, 77 W. Va. 448, 451, 452.)
It would perhaps not unduly extend the principle to say that the employer might, under some circumstances, have an interest in his employee’s taking suitable exercise in a brief interval allowed for refreshment and rest..
Inasmuch as the evidence may be regarded as establishing that the play in which the plaintiff was injured had become a settled custom, with the knowledge and indeed the express approval of the foreman in charge of the department, and without objection on the part of any one, the court is of the opinion that her injury may be regarded not only as having occurred in the course of her employment, but as having arisen out of it.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages resulting from the death of the plaintiff’s husband, who was electrocuted by coming in contact with a coil of the defendant’s wire. The plaintiff recovered, and the defendant appeals.
The defendant maintained and operated a system of electric-light wires extending from Hutchinson to Nickerson and beyond. A static wire was attached to bayonets at the tops of the poles, and was grounded at each pole. Below it was a transmission wire resting on a cross arm, and below that were two more transmission wires resting on another cross arm. The deceased had granted the defendant a right of way over his farm, inside the fence along the south side of a railroad right of way. The defendant, working eastward from Nicker-son, undertook to install a second static wire about two feet beneath the lower transmission wires. The static wire was reeled off from coils carried in the rear of a wagon. One set of workmen would attach the wire to the poles with staples. Another set of workmen would make the permanent attachment, and would connect the wire with the ground wire extending from the upper static wire. This work progressed to a point on the plaintiff’s farm about a quarter of . a mile from his house, where it was discontinued on January 29, 1917. A considerable coil of unstrung wire was thrown on the ground at a point near and east of the foot of the last pole to which the wire was fastened by staple. The last permanent attachment was several poles farther back. The wire moved freely through the staples, to permit the slack to be taken up at the time of permanent attachment, and was not grounded. The work was left in this state of suspension until after the fatality occurred, almost two months later.
The deceased was last seen alive at about eight or eight-fifteen o’clock of the evening of March 25. His wife carried a bucket of slop to him to feed the hogs, and then returned to the house. She washed the dishes, and waited for him to come, but he did not come. She then searched about the barn, the sheds, and the corrals for him, but could not find him. She then went back to the house and waited awhile longer. Still he did not come, and she went out on the porch to look again, when she saw a light near the railroad track which she/thought at first came from a train. It flashed again, and she saw it was not a train, and she went part way toward it. She could see and hear the flashes, and could smell burning clothing., She returned to the house, got her little boy, and the two went near enough to the place to see a body lying there. They then returned to the house and telephoned the neighbors. Describing the light she saw, the widow said sometimes it would flash at the ground, and then it would go up to the' top of the pole where she could see it flash, a bright, brilliant light, which popped so that she could hear it at the house.
A neighbor who lived a mile away and who had been called by telephone, went down the railroad track to where the fire showed. The night was very dark, and a high wind was blowing, filling the air with dust and sand which rendered it difficult to see. After calling séveral times and receiving no response, he returned to the house, procured a lantern, and in company with another neighbor went to where the body lay and identified it. The body lay on the coil of wire. Other persons soon arrived, some of whom had flashlights. It was necessary to cut the wire running from the coil to the pole, and to cut the strands of the coil, in order to release the body, portions of which were burned to a cinder. The heat had been so intense that the sandy soil where the body lay had been fused into crystals. The deceased had on a pair of leather gloves, and a pair of pliers was found in his pocket. One witness said the flesh of his right hand was all burned off the bone. This witness said the point of light' near the top of the pole was eight or ten feet from the pole.
A neighbor who' was present when the body was released from the coil, said the wire was fastened by staple to the pole, and that with a flash light you could see that it went on to the next pole.- It sagged down from three to five feet, and was probably fifteen feet above the ground. Another neighbor who was present when the body was removed said the wire went up the pole and on west. A lineman of the Nickerson telephone company, who arrived at the scene of the casualty after the body was removed, found the coil and the end of the wire which had been severed from the coil lying on the ground. The wire was sagging down some eight or ten feet between the first and second poles, but it had not been cut between the poles. This witness was, still present at the scene of the casualty when some of the defendant’s workmen arrived from Hutchinson. They spliced the wire some thirty or forty feet back, put it back on the pole, and deadheaded it by wrapping the end around the pole and clamping it at a point about fifteen or eighteen feet above the ground.
There was abundant evidence that the wire was harmless unless it came in contact with the high-voltage transmission wires above it.
The defendant’s chief witness was the electrician at the Nickerson substation. ' He went to the scene of the casualty with his brother, and found the body of the deceased lying on the coil. His brother cut the wire leading from the coil to the pole, and quite humanely released the body from the coil. But the witness said the first thing he looked at was where the wire had been severed some feet west of the first pole. He also said one or more of the wires of the coil were in the fingers of the dead man’s right hand, Another witness for the defendant, who arrived late at the scene of the casualty, gave testimony indicating that the wire might have been cut between the poles.
The negligence charged was that the defendant left the coil lying on the ground approximately two months without deadheading or grounding the wire, and left the wire loose and sagging between the poles, so that it swayed in the wind and could easily come in contact with the high-voltage wires.
The most meritorious assignment of error relates to the refusal of the court to give certain instructions embodying the defendant’s theories of how the casualty occurred. The’ instructions were to the effect that the plaintiff could not recover if the deceased volunteered to remedy the trouble by attempting to release the static wire from contact with the transmission wire, or if he were an intermeddler who interfered with the wire.
The instructions were properly refused. There was no evidence that the deceased, did anything more than come in contact with the coil of wire. All attempts to account for his motives and conduct at the moment of $ie fatal contact were quite speculative, and the court was not obliged to declare rules of law to meet all the situations which speculative ingenuity might propose. Conceding, however, that the deceased was attracted to the place by flashes of light, and undertook to put an end to the abnormal exhibition, he was not a trespasser against the defendant’s system. The farm belonged to him. . While the defendant had a right to construct, maintain, and operate its transmission system across the farm, the defendant was not authorized to abandon incomplete construction work, dump the coil of loosely attached and ungrounded wire on the field, and leave it sagging and swaying there indefinitely. When the deceased observed the consequences of the de fendant’s conduct, he had a right to do what any proprietor of reasonable prudence would undertake to do under the same circumstances, and the prudence of his conduct was duly submitted to the jury, under proper instructions.
The defendant argues that the deceased cut the wire between the poles, went to the coil, and was in the act of drawing the wire-through the staple, when the end went up and established contact with a high-voltage wire.- This conjecture was not warranted by the circumstances, and was contrary to the clear weight of the oral evidence. Concede, however, that the conjecture was well founded. The wire was'safely cut, and the question of the prudence of the deceased in cutting the wire and drawing it through the staple was one for the jury, and was sufficiently covered by the instructions given to the jury.
The defendant argues that what it did and failed to do merely created a condition which did not constitute proximate cause. The duty of the defendant to take precaution was relative to the known character and manifestations of electric energy. A state of affairs which might have been tolerated over night, or over Sunday, became substantially permanent, and as to the deceased, unauthorized; and the court is of the opinion the defendant might properly have apprehended that through the operation of natural agencies danger in some form might result. In any event, the facts were not such that the court can .declare they permitted no reasonable inference except want of proximate relation to the injury, and consequently the question of actionable negligence was properly submitted to the jury.
There are some other ramifications of the defendant’s argument, but it is not necessary to discuss them, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The Trego County State Bank sued Charles Hillman on promissory notes and caused an attachment to be levied on a stock of merchandise and fixtures which he had sold to appellants, who were in possession. The appellants filed an interplea setting up their rights. Judgment was taken against Charles Hillman by default for $586, the amount due on the notes, and subsequently the issues raised by the inter-plea were tried. The court found 'the facts, which, briefly summarized, are:
The property levied upon under the attachment consisted of a stock of merchandise and fixtures owned by and in the possession of Charles Hillman on March 29, 1917; on that day he sold the property to the appellants, without complying with any of the provisions of the bulk-sales law (Gen. Stat. 1915, §§ 4894, 4895) ; the sale was made in good faith, and $1,455, which was the full value, was paid for the pr'operty. At the time of the sale the stock and fixtures were covered by a mortgage held by a wholesale grocery company on which there was due the sum of $815.84. Of the purchase money, $355 was paid direct to the mortgagee, and $1,100 was paid to Charles Hill-man. Subsequently, he paid the balance of the mortgage debt out of the proceeds of the sale, and the mortgage was released of record. He was indebted at the time of the sale to sundry persons and firms in the total sum of $4,140.
For the purpose of protecting their title to the stock and fixtures, the appellants paid additional sums which ¡were applied on this indebtedness, and which were paid prior to the commencement of the action, the total amount paid by them being $1,785.37.
As conclusions of law, the court heíd that by reason of the failure to comply with the provisions of the statute the side was absolutely void; that the attachment was rightfully issued on the facts proven; that the chattel mortgage constituted a valid lien on the property to the amount of $815.84; that the appellants are not entitled to subrogation as to any items paid from the proceeds of the sale, except the amount paid by them on the chattel mortgage; but that they are entitled to be subrogated to the rights of the holder of the chattel mortgage and to have the mortgage kept alive for their benefit. The appellants were ordered to pay to the clerk of the court a sum sufficient to satisfy plaintiff’s judgment, interest and costs, not, however, to exceed the difference between $1,455, the value of the stock, and $815.84, the amount paid by them on the mortgage. In case they failed for 60 days, to make the payment, an order of sale of the property was to issue.
The appellants make the contention that the court “should have gone further in its conclusions of law, and should have allowed appellants to be subrogated to the amounts paid general creditors, and treating the plaintiff as a general creditor, it would have to pro rate with other creditors of equal standing, and equal diligence.” (Italics ours.)
The argument starts with the false premise that the bank should be treated as a general creditor, whereas, in fact, it procured an attachment which it caused to be levied upon the defendant’s property, thereby lifting itself out of the class of general creditors, and advancing to that of a creditor with a lien superior to the claims of general creditors, including any claims of purchasers from the defendant, who had failed to comply with the bulk-sales law. The bank might have sued the appellants in a direct action to recover and might have applied, upon the indebtedness due from defendant, the amount which the trial court required appellants to pay. (Bank v. Davis, 103 Kan. 672, 175 Pac. 972.)
It is insisted that the decision Folding appellants entitled to subrogation as to the item represented by the chattel mortgage, and not as to other items paid by them, results in depriving them of “their equitable rights.” The authorities cited to support the contention are from decisions of this and other courts which relate to the doctrine of equitable subrogation. Here we have to deal with a situation where equity follows the law. It is true that the right of subrogation rests primarily upon equitable principles, but equity cannot ignore the attachment law, nor the rights which a diligent creditor obtains by his attachment. Upon this proposition it is not deemed necessary to cite authorities.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
J. C. Nichols Company, a corporation, plaintiff (appellee), brought this action against Loren W. Meredith and Edith A. Meredith, defendants (appellants), for the specific performance of a real estate contract dated April 9, 1959, whereby the Nichols company agreed to buy and the Merediths agreed to sell an unimproved 80-acre tract of land in Johnson county.
The Nichols company, through its agent C. A. Jones, contacted the Merediths on several occasions prior to April 9, 1959, with reference to purchasing their land. About April 6 Jones prepared a contract of sale and presented it to the Merediths. He was advised by the Merediths that they wanted their attorney, Cyrus Leland, to look over the contract prior to their signing. On April 7 or 8 Jones called at Leland’s office and discussed the contract. Leland suggested several changes and Jones thereafter went to his office and redrafted the contract along the lines suggested by Leland as attorney for the Merediths.
On April 9 Jones then again contacted the Merediths to obtain their signatures to the contract as amended. He advised the Merediths he had complied with Leland’s suggested changes by amending the contract. Jones and the Merediths read over the contract, and at Mr. Meredith’s suggestion the provision for commission to Jones was deleted and also a contingent provision in the contract was stricken. Mr. Meredith initialed the stricken provisions and after the corrections were made the contract was signed by both Mr. and Mrs. Meredith.
A few days later the Merediths took the signed contract to their attorney, Leland, and learned that he had not approved the contract as rewritten. On April 15 Leland wrote to the Nichols company stating the Merediths had brought a copy of the contract of sale to him and the contract seemed to agree with the revisions which he and Jones had discussed with the exception of two things: (1) the mortgage should provide that the holders of the note and mortgage will look only to the land sold in the event of default in payment of the note, and (2) neither the note nor the mortgage would contain a prepayment privilege. In the preparation of the note and mortgage for final closing these suggestions were followed and the note and mortgage prepared were minus these objectionable features. No further objections to the contract, note and mortgage were raised by the Merediths at any time.
Jones picked up the abstract of title at Leland’s office on April 25. The title was examined and the opinion thereon was furnished to Mr. Leland on May 12. Some requirements were met and others were waived.
The correspondence between plaintiff’s and defendants’ counsel disclosed that plaintiff secured for defendants certain easements during the months of July and August which were beneficial to defendants. On August 28 defendants’ counsel, by letter, advised the plaintiff he did not have any authority from the Merediths to set down the transaction for closing and as soon as he received word from defendants he would go ahead with checking the various papers.
On September 2 Mr. Meredith told Jones it would be quite an advantage to him and his wife if an exchange for some other farm could be worked out so that the Merediths could postpone some of their capital gains tax. At this time Jones began showing Meredith various farms in an attempt to help him out on his tax problem. It became obvious it was going to be difficult to work out an exchange of the farms, and on May 6, 1960, Meredith called Jones at the plaintiff’s office for an appointment. Upon arrival Meredith said he just didn’t want to go through with the deal. Thereafter plaintiff commenced this action for specific performance of the contract.
The case was tried by the court without a jury. On the evidence presented the trial court, in a well-analyzed opinion, found:
“1. The main defense of the defendants throughout the entire transaction is that they refused to perform under the April 9, 1959, contract because Mr. C. A. Jones, plaintiff’s agent, did not submit the contract as re-drafted to Mr. Leland, the defendants’ attorney, for his approval. From the standpoint of business and legal ethics, the Court unequivocally agrees with the defendants’ contention. In order to constitute a valid defense, however, the defendants must show that they were misled by the terms of the contract they executed and/or misrepresentations were made by the plaintiff’s agent to the extent that it would be inequitable for the Court to compel specific performance under all of the facts and circumstances of the case.
“2. Immediately upon their learning that Mr. Leland had not approved the contract as re-drafted, had the defendants or their attorney notified or indicated to the plaintiff they did not intend to be bound by the contract, the contract would have been at an end. The evidence was that beginning with Mr. Leland’s letter of April 15, 1959, to the plaintiff’s agent the entire course of conduct on the part of the defendants themselves as well as that of their attorney was that they intended to be bound by the contract. The objections raised by Mr. Leland in his letter, Plaintiff’s Exhibit X, were agreed to by Mr. Jones at their meeting of April 17th. That such was the case is indicated from the testimony that the note and mortgage submitted by plaintiff to Mr. Leland on June 3, 1959, were minus these objectionable features. No other objections to the terms of the contract were subsequently raised by the defendants or their attorney, nor did the evidence show they had any objections to the terms thereof as modified at the present time.
“3. The testimony of Mr. Jones and Mr. Meredith regarding the conversation of June 27, 1959, is sharply conflicting. Again the Court is influenced by the evidence of events that transpired subsequent to that date. The course of conduct of the defendants and their attorney, particularly from June 27th to September 2nd, was consistent with the carrying out of the contract of April 9th as modified. Further, the uncommunicated intention of the defendants not to be bound by the contract was of no legal effect as to the plaintiff. Defendants in fact permitted their attorney to continue to act consistent with and in full recognition of the April 9th contract as modified for the entire period from on about April 15, 1959, to August 28, 1959.
“4. The postponement of performance of the contract on or about September 2,1959, in an effort to work out an exchange of property for tax-saving purposes was at the defendants’ request, and said request and plaintiff’s acquiescence therein did not amount to an abandonment or repudiation of the April 9th contract. At most, performance of the written contract was held in abeyance at the defendants’ request.
“5. From all of the facts and circumstances of the case the Court finds generally in favor of the plaintiff and against the defendants and further finds that the contract of April 9, 1959, as modified, should be enforced and specific performance thereof is decreed. . . .”
At the outset it should be stated we approach this case with full recognition of the fundamental and universal rule to the effect that our province is to examine the record in the light most favorable to the prevailing party below, that we are not triers of fact, and that when findings of the trial court are supported by competent substantial evidence they are binding and conclusive on appeal. (Curry v. Stewart, 189 Kan. 153, 155, 368 P. 2d 297; Dryden v. Rogers, 181 Kan. 154, 157, 309 P. 2d 409; In re Estate of Johannes, 173 Kan. 298, 300, 245 P. 2d 979.) The record discloses the findings of fact made by the trial court are amply sustained by the evidence.
Defendants first contend it was error for the trial court to decree specific performance of the contract which was obtained by fraud and misrepresentation. They base their argument on the ground the April 9, 1959, contract was not submitted to their attorney, Leland, prior to the time they signed it. It is noted the court did not find any fraud or misrepresentation. It found only that from the standpoint of business and legal ethics plaintiff should have submitted the contract to defendants’ counsel prior to their signing. It further found that in order to constitute a valid defense it was incumbent upon defendants to show they were misled by the terms of the contract they executed or that false representation was made to defendants to the extent it would be inequitable for the court to compel specific performance.
The contract was signed April 9, and on April 15 defendants were advised by their counsel that he had not approved the contract as rewritten by Jones. With knowledge of this fact defendants did not repudiate the contract or ask a rescission of it. On the contrary, in going on with the performance of their contract and inviting performance for a period of over twelve months they indicated an intention to abide by the contract and in this manner waived any misrepresentation, if any were made.
The evidence discloses there were no objectionable features to the contract which had not been complied with by plaintiff, nor does the evidence disclose that the contract as modified was inequitable. If defendants felt the contract had been misrepresented to them and that they signed without their counsel’s approving the same, they learned of these facts on April 15, 1959. They did not repudiate the contract until June 1960. It is a well-settled rule in this state that if one is induced by fraud or misrepresentation to enter into a contract and afterwards learning of the fraud or the substance of it recognizes it as a binding contract he waives the fraud or misrepresentation and loses his right to rescind the contract. A party is not allowed to play fast and loose in such a transaction, and if he would disaffirm a contract for fraud he must act promptly after the discovery of the fraud or lose the right of rescission. (Bankers Mortgage Co. v. Robson, 123 Kan. 746, 751, 256 Pac. 997.)
In Morse v. Kogle, 162 Kan. 558, 178 P. 2d 275, this court, in a well-annotated opinion discussing the right to rescind a contract for fraud, stated it was well settled that one who seeks to rescind a contract for fraud must do so promptly upon discovery of the fraud, and if by words or conduct he treats the contract as binding after having knowledge of the fraud, he thereby affirms the contract and cannot rescind. It was further stated that ordinarily an express ratification is not necessary in order to defeat the remedy of rescission. Acts or conduct, inconsistent with an intention to avoid it, or in recognition of the contract, have the effect of an election to affirm it. For cases cited supporting the mentioned rules of law and other applicable rules see Cleaves v. Thompson, 122 Kan. 43, 251 Pac. 429; Turner v. Jarboe, 151 Kan. 587, 100 P. 2d 675; Wells v. Albers, 122 Kan. 643, 253 Pac. 412; Dobie v. Sears Roebuck & Co., 164 Va. 464, 180 S. E. 289, 107 A. L. R. 1026; and McLean v. Clapp, 141 U. S. 429, 12 S. Ct. 29, 35 L. Ed. 804. Only recently in Brown v. Wolberg, 181 Kan. 919, 317 P. 2d 444, we again emphasized the equitable remedy of rescission is open only to the diligent, and one who seeks to rescind a contract on the ground of fraud and misrepresentation must do so with reasonable promptness after the discovery of the fraud.
Other contentions advanced by the defendants have been examined and considered, but in view of the determinative question in this case, as heretofore related, are found to be without sufficient merit to justify a reversal. The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from an action to quiet title to certain personal property. The title being clouded by a tax lien filed by the United States government.
It is agreed that the tax lien cannot reach the property in question unless certain challenged transfers are set aside as void for failure to comply with the provisions of the bulk-sales act. We will summarize the facts which present the issues.
On December 4,1957, Kenneth T. Anderson conveyed to Milo W. Sutton and his wife the personal property used in the publication of a newspaper known as the Salina Advertiser-Sun. The property consisted of linotypes, printing presses and other machinery and equipment used in the preparation and publication of a newspaper. Anderson executed a bill of sale and received as consideration a note in the amount of $29,000 which was secured by a chattel mortgage on the property, subject to a first chattel mortgage to the Planters State Bank in the sum of $20,000. The chattel mortgages were duly recorded.
The Suttons made no payments on the notes and mortgages held by the Planters State Bank and Anderson. On January 23, 1959, Anderson took the property in lieu of foreclosure. The transfer was accomplished by a bill of sale. The value of the property was less than the amounts of the notes and mortgages. It is conceded that there was no attempt to comply with the bulk-sales act (G. S. 1949, 58-101) in connection with any of the transactions.
On April 25, 1959, the United States Internal Revenue Service filed with the Register of Deeds, Saline County, Kansas, a notice of a tax lien against “Milo W. Sutton — Salina Advertiser-Sun,” 122 South 5th Street, Salina, Kansas, in the aggregate sum of $4,943.80. This tax represented withholding and federal insurance, commonly known as social security, taxes with the exception of one item for unemployment insurance tax, in the sum of $64.95, and covered the periods ending March 31, 1958, June 30, 1958, September 30, 1958 and December 31, 1958, on the withholding and federal insurance, and for the year 1958 on the unemployment tax.
On the 28th day of May, 1959, the United States Internal Revenue Service filed an additional notice of a tax lien with the Register of Deeds, Saline County, Kansas, against “Milo W. Sutton — Salina Advertiser-Sun,” 122 South 5th Street, Salina, Kansas, for withholding tax and social security for the period of January 1, through January 22, 1959, in the sum of $197.77.
On April 1, 1960, Anderson sold the personal property to Robert R. Sanders. It was then discovered that the tax lien had been filed. Sanders brought this action against the United States to quiet title and to have the tax lien removed as a cloud on the title to the property.
The trial court entered judgment in favor of the plaintiff which reads in part:
“It is further by the court considered, ordered, adjudged, and decreed that the Plaintiff is the absolute owner in fee simple of the property described in the Plaintiff’s amended petition free and clear of all liens, claims and interests of the Defendant and that the Plaintiff’s title in and to said property be quieted in the Plaintiff as against the Defendant.”
The defendant, The United States, has appealed.
It is conceded that the tax lien has no validity unless the transfer of the property by the Suttons to Anderson on January 23, 1959, is void. The tax lien was not filed until April 25, 1959. The Internal Revenue Code of 1954 (26 U. S. C. A. § 6323) provides in part:
“(a) Invalidity of lien without notice. — Except as otherwise provided in subsection (c), the lien imposed by section 6321 shall not be valid as against any mortgagee, pledgee, purchaser, or judgment creditor until notice thereof has been filed by the Secretary or his delegate—
“(1) Under State or Territorial Laws. — In the office designated by the law of the State or Territory in which the property subject to the lien is situated, whenever the State or Territory has by law designated an office within the State or Territory for the filing of such notice; or . . .”
Appellant states its contention as follows:
“It is the contention of the appellant, defendant below, United States of America, that the Kansas Bulk Sales Act, Section 58-101, G. S. Kan., the pertinent part of which reads as follows; ‘The sale or disposal of any part or the whole of a stock of merchandise or the fixtures pertaining thereto, otherwise than in the ordinary course of his trade or business, shall be void as against the creditors of the seller, unless the purchaser receives from the seller a list of names and addresses of the creditors of the seller certified by the seller under oath to be a complete and accurate list of his creditors and unless the purchaser shall, at least seven days before taking possession of the property, or before paying therefor, notify in person or by registered mail, every creditor whose name and address is stated in said list, or of whom he has knowledge of the proposed sale.’ is applicable to the sale of the property by Milo W. Sutton to Kenneth T. Anderson, and by Kenneth T. Anderson to Robert R. Sanders, the appellee, plaintiff below.”
Our attention is called to Joyce v. Armourdale State Bank, 127 Kan. 539, 274 Pac. 200, in which it was held:
“Where a merchant borrows money, and to secure the same gives a chattel mortgage on his stock of goods and fixtures, and, finding himself unable to make the required payments, surrenders and delivers to the mortgagee all or a substantial portion of the goods and fixtures in compliance with the terms of the mortgage, it is such a disposal of the merchandise and fixtures as is contemplated to be within the meaning of the term ‘sale and disposal’ as used in the bulk-sales law and is a disposal otherwise than in the ordinary course of his trade or business as described in that law.
“If a merchant surrenders and delivers his stock of merchandise to the mortgagee under the circumstances outlined in paragraph one and pursuant to the terms of the chattel mortgage covering the same, without complying with the requirements of the bulk-sales law, either at the time of the execution of the chattel mortgage or at the time of the surrender or delivery of the merchandise, the disposal is void as against creditors of the mortgagor, and the mortgagee becomes a trustee for the creditors of the mortgagor.” (Syl. 1 and 2.)
The above case determines the rights of the parties if, but only if, the transfer of the property was subject to the provisions of the bulk-sales law. The question remaining for determination is, does the equipment used in publishing a newspaper constitute “a stock of merchandise or the fixtures pertaining thereto” as that term is used in the bulk-sales law? We must conclude that such equipment is not a stock of merchandise or the fixtures pertaining thereto.
The bulk-sales act was not intended to cover all businesses but merely the property of one engaged in the particular class of business contemplated, i. e., that of buying and selling goods or merchandise. Unless the seller carries what may be designated a stock of merchandise, the bulk-sales law does not apply.
A newspaper is devoted to the dissemination of news and information on any variety of subjects which are of interest to the general public. It sells news and information, not merchandise. News and information cannot be considered as a stock of merchandise. It is argued that a newspaper uses and sells paper. It does make use of paper incidental to its business. However, the paper is not a stock of merchandise for sale. It takes on more the form of a carton in which the news and information is transported to the reader.
In National Bank v. Hannaman, 115 Kan. 370, 223 Pac. 478, it is stated at page 372 of the opinion:
“Do the provisions of the statute relate to and cover the restaurant business? We think not. While the restauranteur buys merchandise and resells same, ordinarily, it is not sold in the same form as when purchased. He buys foodstuffs and converts it into edible dishes which are sold. The statute covers only a stock of merchandise and fixtures pertaining thereto. A merchant is one who traffics or carries on trade, one who buys goods to sell again, one who is engaged in the purchase and sale of goods. (Campbell v. City of Anthony, 40 Kan. 652, 20 Pac. 492.)” (Emphasis supplied.)
The appellant contends that the Hannaman case was superseded, and in effect overruled, by the more recent case of Stockyards Petroleum Co. v. Bedell, 128 Kan. 549, 278 Pac. 739, which held:
“Under the facts and circumstances related in the opinion, appliances for the conduct of a filling-station business, comprising gasoline pumps, tardes and an air compressor, are held to be fixtures pertaining to the business under the provisions of the bulk-sales statute. (R. S. 58-101.)” (Syllabus 1.)
The two cases are readily distinguishable. A filling station, including the fixtures pertaining thereto, is maintained solely for the purpose of buying and retailing merchandise to the general public. The merchandise consists of oil, gas and motor vehicle appliances. In the Redell case the merchandise consisting of oil, gas, etc., were sold in bulk along with the fixtures.
A newspaper does not carry a stock of merchandise for sale. The sale or mortgage of its machinery and equipment is, therefore, not subject to the provisions of the bulk-sales law.
The judgment is affirmed.
approved by the court.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action filed by Mid-State Homes, Inc., a Florida corporation, against Charles W. Hockenbarger and Mary Ann Hockenbarger, his wife, to foreclose a real estate mortgage given by the Hockenbargers to secure a promissory note.
The trial court sustained a demurrer to the plaintiff’s evidence and appeal has been duly perfected from such ruling.
The basic question is whether the evidence admitted at the trial of the action is sufficient to overcome the demurrer.
The petition alleged among other things that the Hockenbargers (mortgagors) executed and delivered to the Jim Walter Corporation, a Florida corporation (mortgagee), a first mortgage note in the principal sum of $4,896 bearing interest at the rate of 6% per annum; that as a part of the same transaction and in order to secure the payment of the indebtedness evidenced by said note, the mortgagors executed and delivered to the mortgagee a real estate mortgage in writing on property which is specifically described; that for a valuable consideration and before maturity, the note and mortgage were assigned in writing to Mid-State Homes, Inc. (plaintiff-appellant); that there has been a default and failure to comply with the terms of the note and mortgage in that the installment of interest and principal due on the first payment was past due and unpaid; that the appellant as holder of the note has declared the entire principal sum due and payable; and that by reason thereof the appellant is entitled to have its mortgage foreclosed upon the described real property. The prayer reads in part:
“Wherefore, plaintiff prays for a personal judgment against the defendants Charles W. Hockenbarger and Mary Ann Hockenbarger, his wife, for Three Hundred Forty Dollars ($340.00) plus interest at the rate of six percent (6%) per annum; for Four Thousand Five Hundred Fifty Six Dollars ($4,556.00) plus interest at the rate of six percent (6%) per annum from date of filing this action; together with its costs in this action and further prays that said judgment and plaintiff’s mortgage be adjudged and decreed to be a first and prior lien on the real property above described; . . .”
Before the trial and upon timely motion of the Hockenbargers, the Jim Walter Corporation was made a party defendant and service was obtained upon it, but the Jim Walter Corporation never appeared and at the time of trial was in default.
The Hockenbargers in their verified answer to the petition and at the time of trial specifically denied the execution of the mortgage and denied any indebtedness to Mid-State Homes, Inc.
At the trial a witness employed as a salesman for the Jim Walter Corporation at all times material herein testified that he sold a basic model home (shell house) out of the Jim Walter folder to the Hockenbargers. He testified after he received approval from the Jim Walter Corporation he secured the necessary documents to arrange for the financing, such as a note and mortgage. He identified the note executed by the Hockenbargers and testified that their signatures to the note were affixed in his presence. He said:
“A. This is a standard note, secured by a mortgage on the real estate which I personally drew and the customer signed.”
Under the circumstances presented by the record it must be noted the appellant had possession of the note and offered it in evidence. There being no objection the note was admitted in evidence.
The witness further testified:
“Q. Mr. LaFollette, I am going to hand you what has been marked plaintiff’s exhibit two, would you look at that and tell the Court what that is please?
“A. This is the mortgage deed that is secured by the note which is exhibit one.
“Q. And was that signed in your presence?
“A. Right.”
Counsel for the Hockenbargers asked a few prehminary questions, among which was:
“Q. Mr. LaFollette where was this alleged mortgage signed?
“A. At the Hockenbarger residence in Topeka, Kansas [Shawnee County].”
Upon further questioning the witness testified that Dora Lane Pludson acknowledged the instrument as a notary public, but she was not present when it was signed. (The mortgage shows the notary’s seal is for Sedgwick County, Kansas.)
An objection to the introduction of the mortgage in evidence was sustained by the trial court.
A witness, employed by Mid-State Homes, Inc. in the capacity of a field representative, testified:
“Q. I hand you what has been marked plaintiff’s exhibit number three, will you tell the Court what that is please?
“A. This is an assignment of mortgage executed in Hillsboro County, Florida, of a mortgage from Charles W. Hockenbarger and Mary Ann Hockenbarger to the Jim Walter Corporation.
“Q. To whom was it assigned?
“A. To Mid-State Homes Corporation.”
The assignment was offered in evidence and counsel for the Hockenbargers objected as follows:
“Mr. Townsend: To which we object for the reason I don’t think it is proper to offer and introduce into evidence the assignment of a mortgage that has been rejected and furthermore the examination of this purported assignment shows it is assigned to Mid-State Homes, Incorporated. The statute in our state, 67-319, dealing with the assignment of mortgages, specifically prescribes that an assignment of a mortgage in this state must bear the name and address of the assignee. The address of the so-called assignee does not appear.”
The trial court sustained the objection to the introduction of this assignment into evidence.
The witness further testified that the ledger card which is kept in the file at Mid-State Homes, Inc. did not show any payment from the Hockenbargers, and the ledger card was admitted into evidence.
Thereupon the plaintiff rested its case and the defendants demurred to the evidence on the ground that it failed to prove a cause of action against the defendants.
The trial court in announcing its ruling, after reviewing the evidence, said:
“. . . Now, the acknowledgment — it starts out by saying ‘State of Kansas, County of Shawnee’ and contains the usual verbage as to the persons having personally appeared before the Notary and executed the instrument as their free act and deed, but, in spite of the fact it says, ‘State of Kansas, County of Shawnee’, the seal of the Notary shows ‘Sedgwick County’. Now a notary can only execute instruments within the county in which they are commissioned. That is one element to take into consideration but over and above that we have here a situation where the notary didn’t see the people sign, they didn’t appear before her. So for those reasons the execution of the instrument is of no legal effect.
“Then, the next instrument is plaintiff’s Exhibit three which purports to be the assignment of the mortgage. That instrument is not valid on its face because it does not comply with the statute regarding the showing of the residence of the assignee. And, beyond that, if the mortgage is of no legal effect there was nothing assigned by the paper that is called an assignment. So that takes care of the mortgage and the assignment.
“We now come to the question that has been raised as to one of the elements of the defendant’s demurrer as to the promissory note. I cannot agree with counsel for the plaintiff in the position he has stated. The only thing I can see in our situation here is that here is a promissory note. It was marked plaintiff’s exhibit number one. It was admitted in evidence but we must be mindful of the fact that the note was given to Jim Walter Corporation. This Court does not think that the plaintiff in this case is a proper person or company to expect any recovery under this instrument. The Jim Walter Corporation is the only company that can expect to recover on that note and even though they were made party defendant in this case they are in default.”
The appellees filed a motion for a new trial. While it was pending for hearing they perfected an appeal from the order of the trial court sustaining the demurrer to the evidence, after which the motion for a new trial was abandoned.
The appellant specifies as error: (1) The refusal of the trial court to admit the mortgage into evidence; (2) the refusal of the trial court to admit the assignment of the mortgage into evidence; and (3) the sustaining of the demurrer to the plaintiff’s evidence.
The appellees challenge the right of the appellant to be heard in this court on the first two specifications of error because no motion for a new trial was presented to the trial court raising these questions.
The appellant’s notice of appeal is limited to the order of the trial court sustaining the demurrer to the plaintiff’s evidence. This court has held many times that matters specified as error, in order to be reviewable, must be within the purview of those matters contained in the notice of appeal, and when an appellant seeks to have this court review alleged trial errors, he must appeal from the order overruling his motion for a new trial, and, in addition, must specify such ruling as error. (American State Bank v. Holding, 189 Kan. 641, 371 P. 2d 167; and cases cited therein.)
Questions relating to the erroneous admission or exclusion of evidence must be raised by a motion for a new trial, and the ruling on that motion specified as error, in order to be subject to appellate review. (Morgan v. Morgan, 146 Kan. 880, 73 P. 2d 1105; Billups v. American Surety Co., 173 Kan. 646, 251 P. 2d 237; and Emporia Plumbing & Heating Co. v. Noland, 177 Kan. 35, 276 P. 2d 296. See, also, G. S. 1949, 60-3001 and 60-3004.)
In ruling on a demurrer courts do not weigh or compare contradictory evidence, but accept all the evidence as true, give it the benefit of all inferences that may properly be drawn therefrom, and consider only such portions thereof as are favorable to the party adducing it. (Reda v. Lowe, 185 Kan. 306, 342 P. 2d 172.) Another rule of equal importance is that in testing the sufficiency of the evidence, a demurrer is to be regarded as directed to the evidence admitted. (Emporia Plumbing & Heating Co. v. Noland, supra; and Jet-Wood Central Mercantile Co. v. Pringle, 128 Kan. 159, 160, 277 Pac. 37.) This last rule is subject, of course, to the modification that if the party complaining properly raises the question of excluded evidence on appeal, and shows that such evidence should have been received, then such evidence may also be entitled to consideration in passing on the demurrer in the appellate court.
The appellant argues that error predicated on the exclusion of evidence where there has been no verdict, report or decision, but where the case comes to this court on an appeal from an order sustaining a demurrer to the evidence, is reviewable. (Citing, Wagner v. Railway Co., 73 Kan. 283, 85 Pac. 299; and City of McPherson v. Stucker, 122 Kan. 595, 256 Pac. 963.)
Two years after the decision in City of McPherson v. Stucker, supra, the court explained the above decisions (relied upon by the appellant) as being the rule under the old statute, but not under the new 1909 statute (now 60-3004, supra), in Jett-Wood Central Mercantile Co. v. Pringle, supra, where it was held in Syllabus ¶ 2:
“An error in excluding evidence is not reviewable on appeal unless such excluded evidence has been produced and presented to the trial court by affidavit or otherwise at the hearing of the motion for a new trial, and this rule applies under R. S. 60-3004 in cases where a demurrer to the evidence has been sustained.”
The appellant attempts to distinguish the Jett-Wood case by stating it appears to be proper where the court is faced with the situation of excluded oral testimony, because the court could have no knowledge of what the import of such evidence would be. It is argued the rule is different where the excluded evidence is documentary in form. Here it is argued the court had every oppor tunity to examine the two exhibits, namely the mortgage and the assignment, which were excluded; and that the question of their inclusion or exclusion was purely a matter of law.
The appellant’s point is not well taken. The rule to which reference is made regarding the formal presentation of evidence on the hearing of a motion for a new trial, has reference to G. S. 1949, 60-3004, as construed by the court, and not to the exclusion of evidence where appeal has been perfected from an order sustaining a demurrer to the evidence.
We therefore hold the written mortgage and the written assignment of the mortgage, which the trial court erroneously excluded from evidence (See, Hill, Adm'r, v. Petty, 116 Kan. 360, 226 Pac. 717; Charpie v. Stout, 88 Kan. 318, 128 Pac. 396; Rex v. Warner, 183 Kan. 763, 332 P. 2d 572; Hill v. Hill, 185 Kan. 389, 345 P. 2d 1015; Anthony v. Brennan, 74 Kan. 707, 87 Pac. 1136; Pletcher v. Albrecht, 186 Kan. 273, 350 P. 2d 58; and Robinson v. Campbell, 60 Kan. 60, 55 Pac. 276), are not entitled to consideration on this appeal in determining whether the evidence admitted at the trial of the action is sufficient to overcome the demurrer.
It is established law that a negotiable note, as was admitted in evidence in the instant case, may be transferred by mere delivery without written endorsement. Here possession of the note by the appellant and its production at the trial furnished prima facie evidence of ownership in the appellant. (O’Keeffe v. National Bank, 49 Kan. 347, 30 Pac. 473.)
In Savings Association v. Barber, 35 Kan. 488, 11 Pac. 330, the court stated:
“. . . Even if there was no written indorsement, none was necessary to enable the plaintiff to sue in its own name. A negotiable promissory note may be assigned orally, and the mere delivery for a valuable consideration will pass the title. Possession of a note — where it does not appear upon the note who the owner thereof is — is prima facie evidence of ownership. . . .” (p. 494.)
More recent decisions holding that possession of the note is considered prima facie evidence of ownership are Manhattan Chamber of Commerce v. Gallagher, 123 Kan. 155, 254 Pac. 345; and Heyen v. Garton, 129 Kan. 453, 283 Pac. 636.
Upon the facts and circumstances presented to this court, as viewed on demurrer, the evidence admitted in the trial court was sufficient to overcome a demurrer.
The judgment of the lower court is reversed.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Wertz, J.:
The defendant was tried and convicted for the offense of possession of a narcotic drug, namely cannabis, commonly called marihuana, in violation of G. S. 1961 Supp., 65-2502, and sentenced to the penitentiary.
At the trial defendant moved to suppress the evidence that served as a basis for his conviction on the ground it had been obtained by means of an unlawful search and seizure contrary to the provisions of the Fourth and Fourteenth Amendments to the federal constitution and section 15 of the Bill of Rights of the Constitution of the State of Kansas. Defendant assigns as error the trial court’s overruling of his motion to suppress the evidence. The pertinent facts follow.
Shortly after midnight October 6, 1962, the sheriff, in company with other law enforcement officers carrying a warrant issued out of Wyandotte county for the arrest of the defendant charging him with obtaining narcotics by forged prescriptions, went to the home of the defendant in Lawrence. The officers rapped on defendant’s door and advised him they were officers and had a warrant for his arrest. The officers were admitted. Defendant was placed under arrest pursuant to the warrant issued out of Wyandotte county and then was advised by the officers they would make a search of his apartment which consisted of a living room, kitchen, bathroom and small closet. The defendant consented and advised the officers to go ahead. The officers then made a search of the apartment and in a closet adjoining die front room found a glass jar containing what subsequent tests proved to be cannabis.
In Harris v. United States, 331 U. S. 145, 91 L. Ed. 2d 1399, 67 S. Ct. 1098, and adopted by this court in State v. Blood, 190 Kan. 812, 821, 378 P. 2d 548, the court emphasized it is only unreasonable searches and seizures which come within the constitutional prohibition; that the test of reasonableness cannot be stated in rigid and absolute terms; and that each case is to be decided on its own facts and circumstances. In the Harris case a warrant had been issued for the petitioner’s arrest charging violation of the Mail Fraud Statute and the National Stolen Property Act. Upon arrival at his apartment petitioner was arrested in the living room, and without a search warrant an intensive search followed for two canceled checks and other means by which the crimes charged might have been committed. In the course of this search a sealed envelope marked “personal papers” of the accused was found and torn open. It contained several draft cards which were property of the United States, and the possession of which was a federal offense. Thus, an arrest for one felony which was followed by a search, produced evidence of another felony. It was held the evidence found in the search was not obtained in violation of the provisions of the Fourth Amendment against unreasonable searches and seizures, nor did its use violate the privilege of the accused against self-incrimination under the Fifth Amendment.
The Harris case further stated the Fourth Amendment has never been held to require that every valid search and seizure be effected under the authority of a search warrant. Search and seizure incident to lawful arrest is a practice of ancient origin and has long been an integral part of the law-enforcement procedures of the United States and of the individual states.
It was also held a search incident to an arrest may, under appropriate circumstances, extend beyond the person of the one arrested to include the premises under his immediate control.
It was further stated in the Harris case (p. 151), in quoting from Agnello v. United States, 269 U. S. 20, 70 L. Ed. 145, 46 S. Ct. 4:
“ ‘The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted.’ It is equally clear that a search incident to arrest, which is otherwise reasonable, is not automatically rendered invalid by the fact that a dwelling place, as contrasted to a business premises, is subjected to search.”
In the instant case the defendant does not question the validity of his arrest on the warrant issued out of Wyandotte county at the time in question, nor that the search, with defendant’s consent, for the fruits of the crime revealed the unlawful possession of the cannabis in question, which possession was prohibited by section 65-2502, nor that such possession was a felony. No support can be found for the suggestion that the search made could not validly extend beyond the room in which the defendant was arrested. (Harris v. United States, supra.) Defendant was in the exclusive possession of his apartment. His control extended as much to one room or place in the apartment as to another. The instant case was not one in which law enforcement officers invaded a private dwelling without authority and seized evidence of crime. The officers entered the apartment of the defendant under the authority of a lawful warrant of arrest. Neither was the entry illegal nor was the arrest which followed in any sense illegal. (Harris v. United States, supra.)
Defendant points out that by virtue of United States v. Donnelly, 179 F. 2d 227, following the rule announced in Trupiano v. United States, 334 U. S. 699, 92 L. Ed. 1663, 68 S. Ct. 1229, that where there is ample time in which a search warrant could have been procured, a search without such warrant is unreasonable and illegal even though incident to a valid arrest. The two cases cited and relied on by defendant have been overruled in the case of United States v. Rabinowitz, 339 U. S. 56, 94 L. Ed. 653, 70 S. Ct. 430, wherein at page 65 it was stated:
“A rule of thumb requiring that a search warrant always be procured whenever practicable may be appealing from the vantage point of easy administration. But we cannot agree that this requirement should be crystallized into a sine qua non to the reasonableness of a search. It is fallacious to judge events retrospectively and thus to determine, considering the time element alone, that there was time to procure a search warrant.’
Therefore, the defendant’s contention in this respect is without merit.
Defendant further argues the search conducted by the arresting officers was of an exploratory nature and therefore unreasonable, and relies on the case of United States v. Lefkowitz, 285 U. S. 452, 76. L. Ed. 877, 52 S. Ct. 420, which condemns exploratory searches. However, the Lefkowitz case distinguishes between an exploratory search for merely evidentiary items which may not be seized, even with a valid search warrant, and those items which may properly be seized, including the fruits of the crime or the means by which it was accomplished. This case was discussed in Harris v. United States, supra. The facts in the present case indicate the defendant was arrested pursuant to a warrant charging him with forging prescriptions in order to obtain narcotic drugs. The search that followed was for the purpose of discovering prescription blanks or bottles of narcotics obtained by the alleged forged prescriptions and other means by which the crime charged might have been committed. These items are the fruits and instrumentalities of the alleged crime rather than mere evidentiary items tending to connect the defendant with the offense. Thus, the search conducted in the present case is not consistent with the principles announced in the Lefkowitz case.
There is nothing in the Fourth Amendment which prohibits the seizure by law enforcement agents of government property, the possession of which is a crime, even though the officers are not aware that such property is on the premises when the search is initiated, when entry upon the premises of one be authorized and the search which follows be valid. (Harris v. United States, supra.) In State v. Holmes, 191 Kan. 126, 128, 379 P. 2d 304, we stated:
“It is contended the court erred in admitting evidence secured by illegal search and seizure. This argument likewise is without merit. The raid was made by officers under the authority of a search warrant for liquor violations, but it does not follow they were completely impotent to act when, during the process of the raid, they discovered the gambling activities in question.”
In view of what has been said we are of the opinion the admission of the evidence obtained as hereinbefore stated did not violate any constitutional rights of the defendant.
The defendant further argues the trial court prejudiced his cause by interrupting his counsel during the voir dire examination and opening statement to the jury. All that need be said is that the trial court has broad discretion in controlling both the voir dire examination (Mathena v. Burchett, 189 Kan. 350, 355, 369 P. 2d 487) and the opening statement (State v. Laird, 79 Kan. 681, 100 Pac. 637) and reviewing courts will not interfere unless discretion has been abused. The record is void of any indication of any abuse of discretion. On the contrary, the record indicates the court had a duty to make the suggestions to defendant’s counsel, and defendant’s contention on this issue is without merit.
The case is affirmed under the authority of Harris v. United States, supra, and State v. Blood, supra, and cases therein cited.
It is so ordered.
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from the trial courts order denying the separate applications of the three defendants for the issuance of a writ of habeas corpus in which defendants contend they were bound over to the district court for trial from their preliminary hearing even though their arrest was illegal and the evidence obtained through search and seizure as a result of such illegal arrest was wrongfully obtained and inadmissible, and finally, that no probable cause existed for leading the officers to believe a crime had been committed which would make the arrest legal.
The only defendant with which we are presently concerned in this appeal is James Earley but for clarity we shall mention all three defendants in our discussion.
About two or three weeks prior to September 24, 1962, Ray Emmons was sent to Crawford county by the Kansas Bureau of Investigation for the purpose of assisting local police officers in checking frequent nighttime burglaries in that county. At 10:00 p. m. on September 24, 1962, while patrolling the city of Girard, Emmons heard a police radio transmission that an open window had been discovered in the Girard High School. However, a later report informed him that the janitor had closed the window and everything at the school building appeared to be in order.
Around midnight Emmons parked his car about one-third of a block south of Kansas highway 57 facing north up a residential street which ran one block west of the Girard High School. He heard a dog barking in the schoolhouse area and shortly thereafter he saw three men appear from a vacant lot adjoining the schoolhouse. They walked down the middle of the street, got into a car parked in the middle of the block, started the car, drove down the residential street toward him, and then turned and proceeded west on highway 57 which runs east and west.
When defendants’ car approached Emmons, he started his car and turned in pursuit. As his car swung in behind defendants’ car, his headlights picked up the figure of James Earley in the back seat. Earley, a resident of Neodesha, Kansas, was a known felon and a burglary suspect in southeast Kansas. Emmons stopped defendants’ car for the purpose of questioning them but before he could reach their car, John Finley jumped out of the driver’s seat and met Emmons between the cars. Emmons recognized Finley because he had just recently testified in an Allen county trial wherein Finley had been acquitted of a charge of burglarizing a schoolhouse. Emmons knew Finley had no driver’s license, that he was a resident of Erie, Kansas, had a felony record including burglary, and was also a burglary suspect in southeast Kansas. Finley stated to Emmons he had never been off highway 57.
The occupant of the right front seat of defendants’ car came up and identified himself as Glenn Denney, the third defendant, who Emmons recognized from pictures and from his knowledge of Denny’s criminal record. Emmons knew Denny was presently on parole from a burglary conviction in Montana and was a burglary suspect in southeast Kansas.
Emmons went to the right side of defendants’ car to see what had become of Early and saw a .45 automatic lying directly below the right front door of the car. The shoes and trousers of all three defendants were wet as though defendants had been wading through wet grass. There had been a heavy dew.
The Crawford county sheriff arrived on the scene and the officers “frisked” the defendants, the sheriff handcuffed them, and they took them to the Crawford county jail. Defendants were then arrested for investigation of burglary. The automobile was searched and screwdrivers, a nail bar, a tire tool, a shop cap, a flashlight, and several pairs of brown cotton gloves were found therein.
Emmons went directly to the Girard High School where he found that doors and windows had been forced open although nothing had been taken. A later examination of the tools and gloves in the laboratory of the Kansas Bureau of Investigation at Topeka revealed that marks and paint on the tools and gloves were similar to marks and paint on the school building. The tools matched the markings on the windows and doors perfectly.
These defendants have not been tried in the district court. They have merely been bound over as a result of a preliminary hearing for trial in the district court.
Defendants filed their separate and independent applications for the issuance of a writ of habeas corpus in the district court of Crawford county, and upon that court’s order denying the issuance of such writs, appeals were perfected to this court from the orders of denial raising the following questions: (1) Were tools taken from the car admissible in evidence against defendants, or was such evidence barred because it was obtained by illegal search and seizure and (2) considering all the competent evidence at the preliminary hearing as being admissible, is there any probable cause to believe the defendants committed the crime of burglary charged in the complaint?
For purposes of emphasis, we again state this appeal involves only the preliminary hearing, and not the trial of defendants, and what is stated herein is not intended to control admissibility of evidence in any trial resulting from such preliminary hearing.
This court has already pronounced definite rules in regard to preliminary hearings. In Kelly v. Kurtz, 183 Kan. 684, 331 P. 2d 327, it was said:
“On appeal from the judgment of a district court in a habeas corpus proceeding it is not the province of this court to review errors claimed, by one of the parties, to have been committed by a magistrate in the course of a preliminary examination.” (p. 687.)
In McIntyre v. Sands, 128 Kan. 521, 278 Pac. 761, the rules were stated thus:
“The main purpose of a preliminary examination of one accused of crime it to determine that a crime has been committed and to give him general information of the nature of the crime charged, and apprise him of the sort of evidence he will be required to meet when he is subjected to a final prosecution in the district court.
“It is not necessary that there should be the same formality or strict compliance with procedure and the rules of evidence in a preliminary examination as upon the final trial of the accused.” (Syl. ¶ 1, 2.)
In the opinion in the above case we find a further statement concerning procedure in a preliminary hearing:
"And where an attempt has been made to give an accused a preliminary examination and he has been given reasonable notice, by the papers and proceedings in the case, of the nature and character of the offense charged, the examination has served its principal purpose and is ordinarily regarded as sufficient. [Citations].” (pp. 522, 523.)
The McIntyre case has been cited and adhered to in many of our subsequent cases, and more particularly, in State v. Willhite, 161 Kan. 113, 115-117, 166 P. 2d 562; State v. Rangel, 169 Kan. 194, 195-196, 217 P. 2d 1063. As was stated in In re Merrifield, 175 Kan. 889, 267 P. 2d 465, this court has definitely determined that a preliminary hearing and the examination therein is not a trial as the term trial is ordinarily used. It was there held:
“A preliminary examination is not a trial as that term is ordinarily used. The complaint and warrant used in a preliminary examination are not construed with the strictness of papers filed in the district court such as an information.” (Syl. fl.)
We are not unmindful of the authorities cited by the parties in this case dealing with the trials of defendants charged with felonies but it is neither the duty nor the prerogative of this court in an appeal in a habeas corpus proceeding after a preliminary hearing to decide whether pleadings or evidence in an ensuing trial will have to meet certain standards, and for that reason we have particularly emphasized that we are here considering only the preliminary hearing of these defendants and the pleadings and evidence there presented.
Judgment affirmed. | [
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