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The opinion of the court was delivered by
Jackson, J.;
This case involves the construction of the will of George W. Savage who died testate October 17, 1936 and whose will was probated on January 9, 1937.
George W. Savage left as his heirs: Mary Jane Savage, his widow; Roy W. Savage and Ernest E. Savage, adult sons; Grace M. Helt, adult daughter; and Doris Bloomfield Goldsmith, granddaughter, daughter of a deceased daughter.
The appellants as plaintiffs are Ernest E. Savage, son of the testator, and Doris Bloomfield Goldsmith, the granddaughter.
The will provided that the wife of the testator, Mary Jane, should have the use, rents and profits of all his real estate for her life and upon her death the entire income was to be divided equally among the testator’s two sons, Ernest and Roy and his daughter Grace. Upon the death of his son Ernest, the remainder was bequeathed to his son Roy and his daughter Grace, share and share alike, upon their paying to his granddaughter Doris the sum of $1500.
The executor closed the estate on March 4, 1938, and withdrew from office. At that time no controversy existed as to the construction of the will.
Following the death of the widow, Mary Jane, on October 29, 1951, testator’s son Roy, named as trustee in the will, took over the duties of handling the property. He carried out the provisions of his father’s will as to distributing the income from the properties to his brother, appellant Ernest, to his sister and to himself.
When, contrary to the calculations of the testator, the son Roy pre-deceased son Ernest, the relationship of the Savage family was changed completely with respect to paragraphs 4 and 5 of the will which read as follows:
“4. After the death of my wife, it is my will that the income from all of said real estate, after the payment of taxes and necessary upkeep and expenses of the property from the date of the death of my said wife up until the date of the death of my son, Ernest E. Savage, be divided share and share alike between my sons, Ernest E. Savage and Roy W. Savage, and my daughter, Grace M. Helt. And I hereby appoint my son, Roy W. Savage, as Trustee with authority to collect the rents and profits from said real estate during said time and pay the taxes and other necessary expenses incident to the handling of said property and divide the proceeds among said parties as aforesaid.
“5. After the death of my said son, Ernest E. Savage, it is my will and I hereby give, devise and bequeath all the remainder of my said property to my son, Roy W. Savage, and my daughter, Grace M. Helt, share and share alike, upon their paying to my granddaughter, Doris Bloomfield, the sum of Fifteen Hundred Dollars, ($1,500.00), and I hereby give and bequeath to my said granddaughter the said sum to be paid by my son, Roy W. Savage, and my daughter, Grace M. Helt, within a year after the death of my said son Ernest E. Savage, and upon making said payment the full title to my said real estate shall vest in my said son, Roy W. Savage, and my daughter, Grace M. Helt.”
It was not until twenty-four years after the will had been admitted to probate that the first action was filed in any court for the construction of the father’s will.
Upon the death of Roy in December, 1960, his heirs filed their action to determine the descent of Roy’s properties which, they claim, included a one-half interest in the holdings listed in the will of George W. Savage.
Plaintiffs then filed their action for construction of the will of George W. Savage. As alleged in the petition, it was uncertain who would take the property, what title, if any, was vested in Roy and Grace and it became necessary that the will be construed to determine these and other questions. They claim that “the 4th and 5th paragraphs of said will are uncertain and conflicting, vague and ambiguous and contrary to public policy, and should be declared illegal and void; . . .”
The appellants filed the petition seeking a declaratory judgment under G. S. 1949, 60-3127. The defendants filed a motion to test the petition claiming that it should be stricken or made more definite and certain. The motion was denied.
Defendants then filed a demurrer to hold that the petition did not state a cause of action. The district court sustained the demurrer and plaintiffs bring the matter here seeking a reversal.
We feel that the allegations of the petition are sufficient to show that a controversy did exist arising over the interpretation of the will and call attention to the case of Huber v. Schmidt, 188 Kan. 36, 360 P. 2d 854, where on page 39, the opinion states the rule:
“While a demurrer is rarely used in attacking a petition for a declaratory judgment, when a party elects to so employ a demurrer the test applied in determining the sufficiency of the pleading under attack is whether such pleading sets forth facts showing an actual controversy concerning some matter covered by the statute, G. S. 1949, 60-3127. If an actual controversy is alleged in a petition for a declaratory judgment, it is the duty of the district court to overrule the demurrer to the petition and proceed with the cause in accordance with the provisions of the act. (State Association of Chiropractors v. Anderson, 186 Kan. 130, 348 P. 2d 1042; McAdam v. Western Casualty & Surety Co., 186 Kan. 505, 351 P. 2d 202; Bodle v. Balch, 185 Kan. 711, 347 P. 2d 378; Simmons v. Reynolds, 179 Kan. 785, 298 P. 2d 345; Stalnaker v. McCorgary, 170 Kan. 9, 223 P. 2d 738; Hyde Park Dairies v. City of Newton, 167 Kan. 730, 208 P. 2d 221.)”
The cases cited in Huber v. Schmidt, supra, are fully in point.
It is therefore held that the trial court must be reversed as to its order on the demurrer. It is so ordered.
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The opinion of the court was delivered by
Hatcher, C.:
This appeal is from a judgment rendered in an action challenging the validity of a trust instrument which reserved a life interest in the grantor, gave him power to revoke, and conveyed property in which his nonresident wife would have otherwise acquired an interest by inheritance.
A comprehensive discussion of the issues requires a rather extensive presentation of facts.
Bessie M. Ackers married Frank C. Ackers at Las Vegas, Nevada, on February 22,1942, while residing in the state of California. She had been previously married twice and these marriages ended in divorce. Her second divorce became final four days before her marriage to Frank.
Frank had previously been married to Iva McCauley. Her death occurred in August. 1941. One child, the defendant, Frances Corrine Xanders was born to the marriage. The defendant, Charlotte Xanders, is the minor child of Frances.
In August of 1948, Frank left Los Angeles, California, where he and Bessie resided, to return to his parental home in Abilene, Kansas. There is no evidence that Bessie and Frank saw each other again until she went to Abilene in May, 1958, except for one trip she made to Abilene in the summer of 1949. She sued him for separate mainte nance in the district court at Abilene, Kansas, in May, 1958, and he cross petitioned for divorce. The action was pending at the time of Frank’s death. When Frank left Los Angeles in August, 1948, he was in poor health and had been without work since April or May of that year. He took no property to Abilene. Bessie never became a resident of Kansas.
Frank’s parents were Hiram E. Ackers and Maude E. Ackers. They were longtime residents of Abilene, Kansas. The title to the home was vested in Hiram. Hiram and Maude continued to reside there until their respective deaths. They were survived by their only children, Frank and Deane. On at least two occasions prior to the death of Hiram, Bessie had visited Hiram and Maude in Abilene. At the time of her visit in December, 1945, Hiram was 90 years of age and Maude was past 70.
Hiram died testate on December 3, 1946. The will of Hiram was admitted to probate in the probate court of Dickinson County, Kansas. He willed all of his property to Maude E. Ackers, Frank C. Ackers, and Deane E. Ackers in equal shares. Maude elected to take half of the property under the law so that Frank and Deane each received an undivided one-fourth of Hiram’s estate. His property was not distributed but was held together and operated as a unit under the terms of a trust agreement dated December 19,1946, until Maude’s death. The trust agreement was filed in the probate court of Dickinson County in the proceeding administering the estate of Hiram and was approved by the court in its decree of settlement and distribution entered February 20, 1948.
On August 28,1955, Maude died. She left Frank only an income for life from a one-half interest in property which she owned at her death. It appears that after the death of Maude, Deane conveyed to Frank his one-half interest in the homestead.
The real and personal property to which Frank held title during his lifetime, other than one-half interest in the homestead, accrued from his one-fourth interest in his father’s estate. This property, which was acquired in 1946, was made the subject of a trust in 1955. This trust is the subject of the dispute in this appeal.
The trust indenture dated November 26, 1955, appointed D. E. Ackers trustee with the provision that if, for any reason, he be unable, fail, or refuse to act, the Central National Bank and Trust Company of Topeka, Kansas should be appointed. The trust origi nally covered only the one-fourth interest which Frank held in real estate in Chase County, Kansas.
D. E. Ackers accepted the trust but resigned June 5, 1957. The Central National Bank and Trust Company, now the First National Bank of Topeka, immediately accepted the trust and has continued to serve. On or about the same date Frank conveyed or delivered to the trustee the balance of his property consisting of his three-fourth interest in the parental home in Abilene and stocks and bonds.
Without listing in detail the property which passed to the trustee by delivery of properly executed instruments, it will suffice to state that on May 23, 1958, the trust property consisted of Kansas real estate with a market value of $14,108, and stocks and bonds With a market value of approximately $33,200.
The trust contained the following provisions:
“Grantor reserves the right to instruct the Trustee concerning the sale of any assets held in this trust and to direct the purchase of other securities or property with the proceeds from such sale.
“The Trustee hereunder shall pay to Grantor, or, in the event of his incapacity, then to any guardian of Grantor, during his lifetime, in convenient installments, preferably monthly, the net income derived from said trust estate, or such portion thereof, ... as Grantor may from time to time instruct said Trustee in writing. . . .
“The Trustee hereunder shall pay to Grantor . . . such portion of the corpus of said trust as Grantor may from time to time instruct said Trustee in writing. . . .
“The Grantor herein reserves the right at any time or times to amend or revoke this trust, in whole or in part, by an instrument in writing delivered to the Trustee. If this agreement is revoked in its entirety, the revocation shall take place upon the delivery of the instrument in writing to the Trustee, but any amendment or partial revocation shall take effect only when consented to in writing by the Trustee. . . .
“During the lifetime of Grantor’s daughter, Frances C. Xanders, Trustee shall pay all net income derived from the trust estate in his hands to the said Frances C. Xanders and thereafter to her daughter, Charlotte Xanders, during her lifetime.”
Upon their death the trustee was to transfer and deliver all of the remaining assets to the Kansas University Endowment Association.
The district court found:
“The trust and all of the property conveyed to the trustee by Frank C. Ackers, including the real estate, was made without consideration and without the knowledge or consent of his wife, Bessie M. Ackers. One of his several purposes for creating the trust was to permit himself to enjoy the benefits and the income of the property during his own lifetime and to deprive his wife, Bessie M. Ackers, of any right therein at the time of his death, one-half of which would have otherwise gone to her under the law of descent and distribution.”
On June 4, 1959, a petition was filed by Bessie against the First National Bank of Topeka, Trustee, initiating this action. On October 5, 1959, the United Trust Company, a corporation of Abilene, Kansas, and Administrator of the estate of Frank C. Ackers, deceased, was granted leave to join in the action as an additional plaintiff, and Frances C. Xanders, Charlotte Xanders, a minor, and The Kansas University Endowment Association, a corporation, were joined as additional parties defendant.
The amended petition was in two counts. The first count demanded judgment in favor of Bessie and the administrator each for one-half of the assets of the trust estate. The second count demanded judgment in favor of the administrator for all of the assets of the estate to be administered and distributed to the heirs at law.
The lower court rendered judgment in favor of the defendants and the plaintiffs have appealed.
The first question presented for determination is whether the trust instrument is void in its entirety because the settlor reserved to himself the right to direct the trustee as to the sale of the assets held in trust and the purchase of other assets; the right to the income from the trust estate during his lifetime; the right to demand the payment over of the corpus of the trust, and the right to revoke the trust.
Prior to 1949 the statute covering trusts pertaining to personal property provided:
“All gifts and conveyances of goods and chattels, made in trust to the use of the person or persons making the same, shall be void and of no effect.” (G. S. 1935, 33-101.)
At the same time there was a statute, which still exists, covering trusts and powers concerning land as follows:
“A grantor of lands, reserving an absolute power of revocation, shall be deemed an absolute owner as regards creditors and purchasers.” (G. S. 1949, 67-414.)
This court construed the provisions of G. S. 1935, 33-101, to harmonize with the provisions of G. S. 1949, 67-414, insofar as possible. However, if the instrument contained the power of the grantor to revoke, it was to the use of the person making the same and therefore void. (Hazleton v. Reed, 46 Kan. 73, 26 Pac. 450; Glover v. Fillmore, 88 Kan. 545, 129 Pac. 144; Shulsky v. Shulsky, 98 Kan. 69, 157 Pac. 407.) The fact that the grantor reserved to himself other powers over the corpus of the trust estate did not affect its validity. Such powers as might be reserved by the settlor were considered in Miles v. Miles, 78 Kan. 382, 388, 96 Pac. 481, where it is stated:
“Nor does the fact that the donor retained a beneficial interest in the property during her life destroy its character as an executed trust. In Stone v. Hackett, Executor, & others, 78 Mass. 227, the income of the property was to be paid to the donor during his life and upon his death the principal was to be divided among certain charities. The trust was held valid. In Davis v. Ney, 125 Mass. 590, 28 Am. Rep. 272, a trust was upheld which allowed the donor to receive not only the income, but such part of the principal as she might need during her life. In the case of In re Estate of Soulard, 141 Mo. 642, 663, 43 S. W. 617, 622, it was held that even the reservation of the right to direct the reinvestment of the fund was not inconsistent with a valid trust, because the reservation did not affect the title of the donees or devest them of their interest and was only a reasonable provision for the protection of the equitable rights of the donor. In the opinion it was said:
“ ‘The reservation was not of title, but of power coupled with the trust, and is not inconsistent with the complete transfer of the title in praesenti.’ (p. 664.)”
In Herd v. Chambers, 158 Kan. 614, 149 P. 2d 583, this court had under consideration the construction of G. S. 1935, 33-101 and held:
“Provisions of the declaration of trust described in the opinion examined and held: (a) No such ambiguity exists in its terms pertaining to use, disposition and control of the trust estate as to require consideration of extrinsic evidence, (b) the provision that the settlor of the trust estate may by supplemental writings direct distribution of its corpus to other persons and corporations reserves to such settlor the right to direct that the proceeds of the entire estate be paid to such persons as he sees fit, including himself, (c) other provisions pertaining to management and control of the estate by the trustee and the settlor’s attorney, likewise the provision directing payment of income to the settlor’s wife, if he predecease her, are dependent on and subject to the clause reserving to the grantor the right to otherwise direct the distribution of the entire estate by supplemental writings.
“When construed as a whole the trust agreement created nothing more than a revocable trust with full power in the settlor to abrogate its terms and such trust was for his use and benefit.” (Syl. 2 and 3.)
This was the only construction left open to the court if the language of the statute was to be given any effect. The statute made no exceptions as to the invalidity. The trust instrument was simply void if revocable by the settlor, and thus made “to the use of the person or persons making the same.”
The statute was contrary to the general law of the land. It was amended by the legislature in 1949 to read:
“All gifts and conveyances of goods and chattels, made in trust to the use of the person or persons making the same shall, to the full extent of both the corpus and income made in trust to such use, be void and of no effect, regardless of motive, as to all past, present or future creditors; but otherwise shall be valid and effective.” (G. S. 1949, 33-101. The emphasis indicates the new matter added by the amendment.)
This court has not been called upon to interpret the statute since the amendment. However, the intent and purpose of the legislature would appear to be clear. If the settlor retained the control over the corpus of the trust such as the right to remove the trust assets or the right to revoke the trust, it was void as to creditors regardless of motive but otherwise it was valid. This construction establishes the same basic principle for testing the validity of trusts pertaining to personal property as that pertaining to land. (G. S. 1949,67-414.) It also places the Kansas rule in harmony with the general rule announced by the courts of other states. (See the cases hereinafter cited covering the more limited question before us.)
We must conclude that there being no creditors, the trust was valid and could not be challenged by the administrator or other persons, unless for or by the wife in defense of her rights under the provisions of G. S. 1949,59-504, 59-505, or 59-602.
The question is next raised as to the statutory rights of one spouse in the property of the other.
Kansas has never operated under the common law applicable to husband and wife by which husband and wife were in legal contemplation but one person and that person was the husband; the legal existence of the wife for most purposes merged in that of the husband, and the husband took a freehold estate in the wife’s lands during coverture and the right to convey her chattels real.
The Kansas Constitution, article 15, section 6, provides:
“The legislature shall provide for the protection of the rights of women, in acquiring and possessing property, real, personal and mixed, separate and apart from the husband; and shall also provide for their equal rights in the possession of their children.”
The legislature immediately enacted laws to complement the constitutional provision:
“The property, real and personal, which any woman in this state may own at the time of her marriage, and the rents, issues, profits or proceeds thereof, and any real, personal or mixed property which shall come to her by descent, devise or bequest, or the gift of any person except her husband, shall remain her sole and separate property, notwithstanding her marriage, and not be subject to the disposal of her husband or liable for his debts.
“A married woman, while the marriage relation subsists, may bargain, sell and convey her real and personal property and enter into any contract with reference to the same in the same manner, to the same extent and with like effect as a married man may in relation to his real and personal property.” (G. S. 1949, 23-201, 23-202.)
The statutes gave the wife the same rights as to ownership, power to convey and control her separate property as those of the husband. (Putnam v. Putnam, 104 Kan. 47, 177 Pac. 838; State v. Koontz, 124 Kan. 216, 257 Pac. 944.)
“The statute above quoted guaranteed to every married woman that the property which she had at her marriage, with the rents, issues and profits thereof, should remain her sole and separate property and not be subject to disposal by her husband nor liable for his debts; that she might bargain, sell and convey her property and might enter into any contract with reference to the same, to the same extent and effect as might any married man; that she might carry on any trade or business and that her earnings from a trade or business, labor or services would remain her separate property and might be used and invested by her in her own name." (Nagle v. Tieperman, 74 Kan. 32, 38, 85 Pac. 941.)
It will be understood that the rule as announced does not apply to property jointly accumulated during the marriage. However, it is conceded in this case that the property in dispute was acquired by inheritance, rendering a consideration of the question as to what constitutes jointly acquired property unnecessary.
One spouse has no direct interest in property inherited by the other, and has no rights or liabilities in connection with litigation between heirs. (Rost v. Heyka, 133 Kan. 292, 299 Pac. 969; Carter v. Becker, 69 Kan. 524, 77 Pac. 264.)
There have been no statutory restrictions placed on the right of one spouse to make disposition of separately owned personal property regardless of the knowledge and consent of the other. It has been considered that to restrict either spouse in the sale or disposal of separately owned personal property without the consent of the other would be disastrous to trade and commerce. A different rule has been made applicable to real estate by statute:
“Also, the surviving spouse shall be entitled to receive one-half of all real estate of which the decedent at any time during the marriage was seized or possessed and to the disposition whereof the survivor shall not have consented in writing, or by a will, or by an election as provided by law to take under a will, except such real estate as has been sold on execution or judicial sale, or taken by other legal proceeding: Provided, That the surviving spouse shall not be entitled to any interest under the provisions of this section in any real estate of which such decedent in his lifetime made a conveyance, when such spouse at the time of the conveyance was not a resident of this state and never had been during the existence of the marriage relation.” (G. S. 1949, 59-505, emphasis supplied.)
It will be noted that the first part of the section gives the surviving spouse one-half of all the real estate which the decedent was at any time seized or possessed during the marriage, with the exceptions noted. This was not a common law right. It existed only by virtue of the statute. The proviso definitely excepted from the provision of the statute a surviving spouse who, at the time of the conveyance, was not and never had been a resident of this state during the existence of the marriage relation. The fact that the wife, the surviving spouse, was a resident of the state of California at all times, material to this controversy, is not disputed. In McGill v. Kuhn, 186 Kan. 99, 103, 348 P. 2d 811, it is stated:
‘Tn the first paragraph of the answer, defendant admits that she is not and never has been a resident of Kansas. In light of this admission, it would seem that the deeds from John M. Kuhn were good and sufficient conveyances to transfer any and all title possessed by him to the plaintiffs, regardless of his marital status (G. S. 1949, 59-505). It has long been the law of this state that a wife need not join in a conveyance of Kansas real estate made by her husband, if the wife has never been a resident of the state. . . .”
We must conclude that Bessie, the surviving spouse, had no claim on her deceased husband’s property or the corpus of the trust by virtue of G. S. 1949, 59-505.
The appellant, Bessie, contends that there are two other statutes which give her a right to one-half of her deceased husband’s assets and the trust instrument was executed in a fraudulent attempt to defeat such right.
The statute relating to intestate succession of a surviving spouse (G. S. 1949, 59-504) provides in part:
“. . . 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.”
The statute limiting testamentary power (G. S. 1949, 59-602) insofar as applicable to a spouse provides:
“. . . Either spouse may will away from the other half of his property, subject to the rights of homestead and allowances secured by statute. Neither spouse shall will away from the other more than half of his property, subject to such rights and allowances, unless the other shall consent thereto in writing executed in the presence of two or more competent witnesses, or shall elect to take under the testator's will as provided by law.”
It will be noted that the two statutes above quoted make no distinction between a resident and a nonresident spouse. They both have the same right of intestate succession and they are both protected by the limitation on testamentary power.
In McKelvey v. McKelvey, 75 Kan. 325, 328, 89 Pac. 663, it is stated:
“This statute does not discriminate against a nonresident wife in favor of a resident wife as to the interest the former shall have in the real estate of her husband situated in Kansas. It excludes her from any interest in any lands owned by the husband of which he has made a conveyance, when the wife at the time of the conveyance is not or never has been a resident of the state, and it excludes both the resident and nonresident wife from any interest in any lands which have been sold on execution or other judicial sale. But as to lands not thus disposed of, and not necessary for the payment of his debts at the time of his death, the interest of the non-resident wife is equal to that of the resident wife. The interest which the statute gives to the wife in the real estate of her husband during his life is not easily classified or defined. Because of this difficulty it has been thought by some to be in its nature an inheritance, and such a suggestion may be found in some of the opinions of this court. But practically the entire trend of the decisions of this court is to treat it as a present existing interest — one which the wife may protect by an appropriate action during the life of the husband and against his wrongful acts. (Busenbark v. Busenbark, 33 Kan. 572, 7 Pac. 245; Flanigan v. Waters, 57 Kan. 18, 45 Pac. 56.)’’
It would appear that a resident spouse has a vested right of inheritance, a one-half interest, in the real estate which the deceased spouse was seized or possessed at any time during the marriage. (G. S. 1949, 59-505.) Neither could it be disposed of by will without the consent of the other. (G. S. 1949, 59-602.)
A resident spouse takes but a contingent right to inherit the personal property owned by the other. The right to inherit is contingent upon the other spouse not conveying the property during his or her lifetime.
A nonresident spouse has only a contingent right of inheritance in both the real estate and personal property of the other. The right to a one-half interest in the real estate is not protected by G. S. 1949, 59-505. The right to inherit under G. S. 1949, 59-504 and protected by 59-602 from testamentary disposition is contingent upon the spouse holding title to the property, not conveying it during his or her lifetime with or without consideration and without the knowledge or consent of the other.
The right of the surviving spouse to inherit is greater than that of children mentioned in G. S. 1949, 59-504. The limitation on testamentary power contained in G. S. 1949, 59-602 ( 2) is not extended to children. The property may be conveyed during the lifetime of the parent or it may be devised and bequeathed away from the children by will.
We have now reached the crux of this controversy. If a spouse can during his or her lifetime make an absolute conveyance of all separately owned property, both real and personal, and thus defeat the right of a nonresident spouse to inherit under the provisions of G. S. 1949, 59-504, may the right be defeated by a trust conveyance which the grantor reserves the right to revoke?
The trial court concluded as a matter of law that:
“. . . There is merit on both sides of the issue and a strong case is made for the position that too much control was reserved in this trust to make the conveyances absolute.
“By testing the facts of this case by the American Law Institute, Restatement of the Law of Trusts, Second Edition, and Scott on The Law of Trusts, Second Edition, the trust and transactions herein dealt with barely fall on the side of that which is valid and permissible.”
The lower court correctly applied the law, as found in the Restatement of the Law of Trust, to the facts in the present case. However, the particular phase of the restatement in which we are interested is by no means universally accepted.
Restatement, Second, Trusts, § 57, page 151, states the general rule as follows:
“Where an interest in the trust property is created in a beneficiary other than the settlor, the disposition is not testamentary and invalid for failure to comply with the requirements of the Statute of Wills merely because the settlor reserves a beneficial life interest or because he reserves in addition a power to revoke the trust in whole or in part, and a power to modify the trust, and a power to control the trustee as to the administration of the trust.”
The above statement is very generally accepted and followed. The restrictions on the general rule are stated on page 153 as follows:
“The rule stated in this Section is applicable although the trust is one which could not be created by will. If the owner of property transfers it inter vivos to another person in trust, the intended trust is not invalid merely because the settlor reserves a beneficial life estate and a power to revoke or modify the trust, even though he was prohibited by statute from creating a similar trust by will.
“Thus, if it is provided by statute that the wife of a testator shall be entitled to a certain portion of his estate of which she cannot be deprived by will (see § 146A), a married man can nevertheless transfer his property inter vivos in trust and his widow will not be entitled on his death to a share of the property so transferred, even though he reserves a life estate and power to revoke or modify the trust. Where, however, an outright gift would not operate to deprive the wife of her distributive share, a trust created under the same circumstances would be equally ineffective.
“Illustration:
“A, a married man, transfers property to B in trust to pay the income to A for life and on his death to convey the property to C. By the terms of the trust A reserves power to revoke or modify the trust. By statute it is provided that on the death of a married man, his wife shall be entitled to one half of the property owned by him at his death, and that she cannot be deprived of her share in the property by his will. A’s widow is not entitled to any part of the trust estate.”
The foregoing statement covers the factual situation in this present controversy. The decisions of the courts of the various states are in direct conflict on the question. It would be impossible to state a general rule which it could be said is supported by the weight of authority.
Our somewhat limited research discloses that the states of Florida (Williams et al. v. Collier, 120 Fla. 248, 158 So. 815); Kentucky (DeLeuil's Executors v. DeLeuil, 225 Ky. 406, 74 S. W. 2d 474); Maryland (Brown v. Fidelity Trust Co., 126 Md. 175, 94 Atl. 523); Massachusetts (Kerwin v. Donaghy, 317 Mass. 559, 59 N.E. 2d 299); Michigan (Rose v. Union Guardian Trust Co., 300 Mich. 73, 1 N. W. 2d 458), and Vermont (Dunnett et al. v. Shields and Convant, 97 Vt. 419, 123 Atl. 626) adhere to the rule that one spouse may by a revocable living trust make a valid conveyance of separately owned property in which the other would otherwise have a right of inheritance.
The states of Illinois (Smith v. Northern Trust Co., 322 Ill. App. 168, 54 N. E. 2d 75); Maryland (Mushaw v. Mushaw, 183 Md. 511, 39 A. 2d 465); New Hampshire (Walker v. Walker, 66 N. H. 390, 31 Atl. 14); New York (Newman v. Dore, 275 N. Y. 371, 9 N. E. 2d 966, 112 A. L. R. 643); Pennsylvania (Pengelly Estate, 374 Pa. 358, 97 A. 2d 844), and Virginia (Norris v. Barbour, 188 Va. 723, 51 S. E. 2d 334) adhere to the rule that a conveyance by one spouse to a trustee, reserving the income for life and power of revocation, is illusory and void as to the rights of the surviving spouse under the law of descent and distribution.
The courts of Ohio followed the latter rule until 1961. A review of the opinions in the Ohio cases will present the reasoning on both sides of this controversy. In the case of Bolles v. Toledo Tr. Co., 144 Ohio St. 195, 58 N. E. 2d 381, the Supreme Court of Ohio held in the first three paragraphs of the syllabus:
“A husband may dispose of his personal property during his lifetime without the consent of his wife; but a husband may not bar his widow of her right to a distributive share of any property which he owns and of which he retains the right of disposition and control up to the time of his death.
“Section 8617, General Code, which provides that a revocable and amendable living trust ‘shall be valid as to all persons’ except creditors, does not deprive the settlor of all dominion over the trust res so that a widow electing to take under the statute of descent and distribution is barred from claiming a distributive share of the property in such trust.
“The transfer of property to a trustee under an agreement whereby the settlor reserves to himself the income during his life with the right to amend or revoke, is valid by virtue of Section 8617, General Code, but under such a trust agreement settlor does not part absolutely with the dominion of such property and his widow electing to take under the statute of descent and distribution may assert her right to a distributive share of the property in such trust at settlor’s death.” (p. 195.)
In the opinion it is stated:
“. . . Therefore, we are led to the conclusion that as to the widow, trusts Nos. 331 and 520 were illusory. The term illusory is defined by Webster as ‘deceiving, or tending to deceive; fallacious, illusive.’ This criticism does not necessarily affect the validity of either of these trusts under Section 8617, General Code, but it is intended to show that such trusts may not be used as a device to deprive the widow of her distributive share of the property possessed by her husband at the time of his death. To the extent that such an arrangement, if allowed to stand, would deprive the widow of her distributive share of property, it is voidable at the instance of the widow.” (pp. 212, 213.)
In Harris v. Harris, 147 Ohio St. 437, 72 N. E. 2d 378, it was again held in the syllabus:
“Under the provisions of Section 8617, General Code, the transfer of property to a trustee is valid under an agreement whereby the settlor reserves to himself the income during his life with the right to amend or revoke; but when such settlor does not part with dominion and control over the trust property, his widow may elect to take under the statutes of descent and distribution and may assert her right to a distributive share of such property after his death. (Paragraph three of the syllabus in the case of Bolles v. Toledo Trust Co., Ex’r, 144 Ohio St. 195, approved and followed.)”
Three of the justices dissented.
In Smyth v. Trust Co., 172 Ohio St. 489, 179 N. E. 2d 60, the court reversed its position of long standing and held in the second paragraph of the syllabus:
“A valid voluntary trust in praesenti, formally executed by a husband and existing at the time of his death, in which he reserved to himself the income therefrom during his life, coupled with an absolute power to revoke the trust in whole or in part, as well as the right to modify the terms of the settlement and to control investments, bars the wife, upon the death of the settlor, from a claimed right to a distributive share of the property in the trust upon her election to take under the statutes of descent and distribution. (Paragraphs one, two, three, seven, ten and eleven of the syllabus in Bolles v. Toledo Trust Co., Ex'r, 144 Ohio St. 195, and the syllabus in Harris v. Harris, a Minor, 147 Ohio St. 437, overruled.)”
In the opinion the court referred to the syllabus in the Harris case and then stated:
“The phrase, ‘dominion and control/ as used in that syllabus, of course was construed in the Bolles case (paragraphs two and three of the syllabus) with the statement that if a settlor ‘reserves to himself the income during his life with the right to amend or revoke/ he has not parted absolutely with dominion over the property.
“Matthias, J., in a dissenting opinion, observed:
“‘The decision of the instant case, therefore, must turn on whether the agreement created an agency. If it constituted a trust, it is valid and the res is not a part of the net estate; if an agency, the res did become a part of the net estate/
“Zimmerman, J., likewise dissenting stated:
“ ‘It seems incongruous indeed that a trust may be valid giving the trustee title to and a vested interest in the trust property and yet the settler’s widow, upon electing not to take under his will, may be accorded the right by judicial fiat to claim a “distributive share” of the trust property under the statutes of descent and distribution.’
“It is our purpose now to state the law as we conceive it to be as to the case before us, and, so far as the Bolles and Harris cases are inconsistent therewith, they will be overruled.” (p. 501.)
The court adopted the reasoning in the dissenting opinions and concluded the opinion:
“We reject the rule of the Bolles and Harris cases, to the effect that, if a settlor reserves to himself the income during life, with the right to amend or revoke the trust or any part thereof, such reserved rights and powers defeat the parting with dominion over the trust property and thereby create a right in the widow to assert ‘her right to a distributive share of the property in such [trust] at settlor’s death.’ Neither the statute (Section 1335.01, Revised Code, supra) nor the general rule recognized as existing in the majority of courts of last resort and stated in the Restatement of the Law, supra, justifies the continued recognition in this state of the rule enunciated in the Bolles and Harris cases.” (pp. 503, 504.)
This court has not heretofore been called upon to determine this specific question. However, the decisions of this court, insofar as at all analogous, would appear to lean toward the protection of the right of a spouse to inherit as against any semblance of overreaching on the part of the other by the execution of an illusory instrument.
In Poole v. Poole, 96 Kan. 84, 89, 150 Pac. 592, this court, without making reference to any statute, stated generally as follows:
“Where the transfer or gift is merely colorable and there is a voluntary transfer or conveyance by which the husband reserves to himself an interest in or a power to dispose of the property, it may be declared void as against the widow and she may participate in its distribution upon the theory that the title still remained in the husband. (Small v. Small, supra; Padfield v. Padfield et al., supra; Thayer v. Thayer et al., 14 Vt. 107; Cameron v. Cameron et al., 10 Smed & M. (18 Miss.) 394, 48 Am. Dec. 759; Lightfoot’s Executors and others v. Colgin and Wife, 5 Munf. (Va.) 42; Stewart v. Stewart, 5 Conn. 317; Dunnock v. Dunncok, 3 Md. Ch. 140; Jones v. Somerville, 78 Miss. 269, 28 South. 940, 84 Am. St. Rep. 627.)”
In Small v. Small, 56 Kan. 1, 12, 42 Pac. 323, this court quoted with approval from a note in Kerr on Frauds and Mistakes, p. 220, as follows:
“There can be no doubt of the power of a husband to dispose absolutely of his property during his life, independently of the concurrence and exonerated from the claim of his wife, provided the transaction is not merely colorable, and be unattended with circumstances indicative of fraud upon the rights of the wife. If the disposition of the husband be bona fide, and no right is reserved to him, though made to defeat the right of the wife, it will be good against her.”
We conclude that the husband of a nonresident wife may, by absolute sale, gift or other transfer made in good faith during his lifetime, deprive the wife of her distributive share. However, if the transfer is colorable only and the husband retains the power of revocation, it is fallacious, illusive and deceiving, and will be considered as fraud on the rights of the widow where she is deprived of her distributive share.
The trust instrument in question reserved to the donor the power of revocation. The donor did not part with dominion over the trust res and the widow is not barred from claiming her distributive share of the corpus of the trust under the law of intestate succession. (G. S. 1949, 59-504.)
The appellees suggest that after the death of the donor’s daughter and granddaughter, the corpus of the trust was to pass to the Kansas University Endowment Association. They then contend, and the trial court concluded, that this court is committed to the rule that it is the fixed policy of the law to uphold charitable gifts as valid whenever possible. This court has held charitable trusts to be favorites of the law and that they must be upheld whenever possible. (In re Estate of Porter, 164 Kan. 92, 187 P. 2d 520.) However, this court is also committed to the rule that one spouse should not be permitted to defeat the statutory rights of the other by a colorable or illusory conveyance.
There is no place for the application of the rule favoring charities under the facts in this controversy. Public welfare is not enhanced by a husband conveying all of his property to charity, by a colorable instrument, and thus leaving his widow to seek alms.
The conclusions reached render the rather extensive controversies as to admissibility of evidence, competency of witnesses, and related alleged trial errors immaterial.
The judgment is affirmed insofar as applicable to one-half the corpus of the trust. The judgment is reversed insofar as it deprives the widow of her right of inheritance under G. S. 1949, 59-504, and the district court is instructed to enter judgment directing the trustee to deliver to the administrator of the estate of Frank C. Ackers’ one-half of the corpus of the trust as it existed at the death of Frank G. Ackers, plus increments accruing therefrom, but less the trustee’s reasonable cost of administering the trust, to be administered according to law for the sole benefit of Bessie M. Ackers.
The cost of this appeal shall be taxed to the trust estate and paid by the trustee as part of the costs of administering the trust before transfer of one-half of the trust res to the administrator.
APPROVED BY THE COURT. | [
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|
Rulon, J.:
Arthur Byron Cuddy, defendant, appeals his convictions for possession of methamphetamine and drag paraphernalia and obstruction of official duty, claiming the district court erred in denying his motions for a new attorney, for self-representation, and for a mistrial. We affirm.
The essential facts of this case are undisputed.
In March 1994, the State charged defendant with possession of methamphetamine, possession of drag paraphernalia, and obstruction of official duty.
On December 1, 1994, the parties appeared for trial, and defense counsel told the court that defendant claimed that defendant had written the court 3 Vz weeks earlier stating that he was seeking new counsel. Defense counsel stated that defendant could not afford his own attorney and moved to continue the trial and for appointment of new counsel. The following colloquy between the court, Mr. Rask (the prosecutor), Mr. Gray (defense counsel), and defendant followed the defendant’s motions:
“THE COURT: Do you want to respond to that, Mr. Rask?
“MR. RASK: I’m not really sure why the defendant is' desiring a new attorney. I know Mr. Gray has represented him in the preliminary hearing, also filed a motion to suppress the evidence, and we had a hearing on that. Mr. Gray and I have discussed on several occasions a possible plea agreement, and I know that Mr. Gray has spent quite a number of hours with the defendant both when he’s been in custody and has met with him when he was not in custody, and I don’t really know of any kind of basis that would merit the appointment of a new attorney at the expense of the Indigent Defense Services board.
“MR. GRAY: The only thing I would say in that regard, Your Honor, is Mr. Cuddy advised me that he did not feel that I had his best, interests at heart or representing his best interests.
“MR. CUDDY: I know you don’t.
“MR. GRAY: We did not go into detail about that, and perhaps you can hear from him.
“MR. CUDDY: I know for a fact the man don’t like me, and the feeling is mutual. He’s not on my side. It’s as simple as that.”
Defendant next moved for a competency hearing, claiming he was incompetent to stand trial. The State advised the district court that defendant was jailed with an inmate who was a ‘ jailhouse lawyer” noted for advising inmates to file spurious motions in order to delay proceedings. Defendant admitted that an inmate told him to make the incompetency claim. The district court stated that making a motion for new counsel the day of trial had the appearance of a delay tactic; that despite defendant’s subjective impressions, Mr. Gray was providing defendant with a proper defense; and that the court had no reason to believe that another attorney would provide a better defense. The district court found that defendant had no grounds for an appointment of new counsel and denied the.motion.
Next, defense counsel moved at defendant’s insistence for defendant to represent himself. The district judge responded to the motion by stating, “Well, I think that would be imprudent. I think ■we need to get on with this trial, and I think you need to cooperate with your attorney. So let’s get started.”
During voir dire, the State asked a prospective juror about his ability to listen to the evidence of the case, and the prospective juror answered, “I don’t believe so. I’ve read.it in the paper and heard about it on the radio. So I kind of feel, he’s guilty . . . .” The district court instructed the jury panel to disregard the remark, and-the juror was removed for cause. Defense counsel moved for mistrial, claiming the remark prejudiced the jury panel against defendant, and the district court denied the motion.
' The jury convicted defendant of all charges.
MOTION FOR NEW ATTORNEY
Defendant argues the district court abused its discretion by violating his Sixth Amendment rights in denying his day-of-trial motion for appointment of new counsel.
“Generally, the decision on whether an indigent defendant’s dissatisfaction with his or her court-appointed counsel warrants appointment of new counsel is left to the discretion of the trial court. [Citations omitted.] Judicial discretion is abused when the action taken is arbitrary, fanciful, or unreasonable, or in other words, when no reasonable person would take the position adopted by the trial court. [Citation omitted.]” State v. Hegwood, 256 Kan. 901, 903, 888 P.2d 856 (1995).
“An indigent criminal defendant may not demand a different appointed lawyer except for good cause.” State v. Banks, 216 Kan. 390, Syl. ¶ 1, 532 P.2d 1058 (1975). To warrant substitute counsel, a defendant must show justifiable dissatisfaction with appointed counsel, such as a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication. Hegwood, 256 Kan. at 903-04. Along with good cause, a court must consider the timeliness of a motion for substitute counsel. U. S. v. Merchant, 992 F.2d 1091, 1095 (10th Cir. 1993). In examining such timeliness, the district court must balance the defendant’s Sixth Amendment right to counsel of his or her choice against the efficient administration of justice. Hegwood, 256 Kan. at 904. The United States Constitution does not protect a criminal defendant’s claim of dissatisfaction with appointed counsel as a delay tactic. United States v. Gipson, 693 F.2d 109, 112 (10th Cir. 1982).
In Hegwood, an indigent criminal defendant moved for substitute counsel and a continuance after jury selection but before trial, claiming that his appointed counsel had “ ‘failed to show he [could] represent [the defendant] to the best of [the defendant’s] interests.’ ” 256 Kan. at 902. The Hegwood court held that the district court did not abuse its discretion in denying the motion because the defendant failed to demonstrate any justifiable dissatisfaction with appointed counsel. 256 Kan. at 904. Similarly, in State v. Roberts, 13 Kan. App. 2d 485, 485-86, 773 P.2d 688, rev. denied 245 Kan. 787 (1989), a criminal defendant moved for appointment of new counsel the day before trial, claiming that his appointed attorney’s representation was inadequate. Based on the evidence of the appointed attorney’s efforts, the Roberts court held that the trial court did not abuse its discretion in denying the motion for new counsel. 13 Kan. App. 2d at 486-87.
Here, the trial court found that defendant’s appointed attorney was properly representing defendant and there was no reason to believe another attorney would present a stronger defense. Defendant fails to demonstrate otherwise on appeal. As in Roberts and Hegwood, defendant has not demonstrated justification for his dissatisfaction with his appointed counsel. The district court did not abuse its discretion in denying defendant’s motion for new counsel.
SELF-REPRESENTATION
Defendant next argues the district court violated his Sixth Amendment rights by denying his day-of-trial motion to represent himself. In Faretta v. California, 422 U.S. 806, 835, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975), the United States Supreme Court held that a competent and literate criminal defendant who moved weeks before trial to represent himself or herself had a Sixth Amendment right to self-representation. The Faretta Court noted, however, that the right of self-representation is not a license to disrupt the administration of justice. See 422 U.S. at 835 n.46.
A motion for self-representation must be, among other things, unequivocal. State v. Hollins, 9 Kan. App. 2d 487, 488-89, 681 P.2d 687 (1984). Defendant claims he mailed a letter to the district court 3 V2 weeks before trial, expressing dissatisfaction with his appointed attorney and stating he was seeking other counsel. This letter did not amount to an unequivocal motion for self-representation. Defendant later moved for new counsel. The district court denied the motion, and not until the parties started to empanel the jury for trial did defendant move to represent himself.
Our Supreme Court has stated that generally, before trial, a defendant has an unqualified right to self-representation, but if the defendant does not move for self-representation before trial begins, the court has discretion to deny the request. State v. Cromwell, 253 Kan. 495, 505, 856 P.2d 1299 (1993).
Relying on State v. Lowe, 18 Kan. App. 2d 72, 847 P.2d 1334 (1993), defendant now argues that a motion for self-representation made immediately prior to trial is timely for purposes of invoking one’s unqualified right to self-representation. In Lowe, the defendant moved for self-representation on the day of trial. The trial court responded to the motion by inadvertently misstating the law and telling Lowe that he could proceed pro se only if the court found that Lowe would not benefit from a lawyer in the case. The Lowe court held that by misinforming Lowe in this manner, the trial court erred in denying Lowe the opportunity to pursue his right to proceed pro se. 18 Kan. App. 2d at 78. The Lowe court did not reach the issue of whether the trial court would have had discretion regarding the motion for self-representation because of the lateness of the motion. Kansas courts have yet to address this issue.
Courts from other jurisdictions have taken differing positions concerning day-of-trial and near-day-of-trial motions for self-representation. See generally Annot., 98 A.L.R.3d 13. Two conflicting general rules have emerged. Some courts have established that a motion for self-representation is timely as a matter of law if made before the swearing in of the juiy. E.g., Blankenship v. State, 673 S.W.2d 578, 585 (Tex. Crim. 1984). Other courts have held that., due to the public’s interest in the efficient administration of justice, a trial court has discretion regarding a motion for self-representation that was not made within a reasonable time prior to the commencement of trial. E.g., People v. Hall, 87 Cal. App. 3d 125, 130-31, 150 Cal. Rptr. 628 (1978). The Hall court concluded the trial court had the discretion to deny such a motion made just prior to jury voir dire. 87 Cal. App. 3d at 132.
We believe the latter of the two prevailing rules strikes the more reasonable balance between the right to self-representation and the public’s interest in the efficient administration of justice. See, e.g., Hall, 87 Cal. App. 3d at 131. Such a rule, moreover, vests trial courts with the discretion to prevent the trivialization of two fundamental constitutional rights — the right to counsel and the right to be heard — into a game of delay tactics. Cf. Gipson, 693 F.2d at 112 (admonishing such tactics regarding claims of dissatisfaction with defense counsel). Here, defendant made his motion for self-representation when the parties convened to voir dire the jury panel. As in Hall, defendant failed to make the motion within a reasonable time prior to trial, and the district court had the discretion to deny the motion.
When considering a criminal defendant’s motion for self-representation, a trial court may consider the reasons for the motion for self-representation; the quality of counsel’s representation; the length and the stage of the proceedings; and the potential disruption and delay which could be expected from granting the motion. Hall, 87 Cal. App. 3d at 132. As discussed earlier, defendant had demonstrated no justification for his dissatisfaction with his appointed attorney at the time of the motion. Defendant had ample opportunity to make such a motion earlier but instead waited until the day of trial before making the motion. Under these facts, we are satisfied the trial court did not abuse its discretion in denying defendant’s motion for self-representation.
MOTION FOR MISTRIAL
Finally, defendant argues the district court abused its discretion in refusing his motion for a mistrial after a prospective juror said during voir dire that he believed defendant was guilty. K.S.A. 22-3423(c) provides that a trial court may declare a mistrial if “[prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.” A trial court has discretion in ruling on a motion for mistrial on such grounds and will not declare a mistrial unless the rights of either party have been substantially prejudiced. State v. McCorgary, 224 Kan. 677, 687, 585 P.2d 1024 (1978).
“It is generally recognized that even though individual jurors on the panel may have indicated prejudice or bias that is not sufficient ground for a successful challenge to the entire panel. [Citation omitted.]” State v. Ferguson, Washington & Tucker, 228 Kan. 522, 530, 618 P.2d 1186 (1980). In McCorgary, a criminal defendant moved for mistrial after a prospective juror on voir dire said that she believed newspaper accounts of the alleged crimes at issue. The trial court excused the prospective juror from service, admonished the juiy panel to disregard the statement, and denied the defendant’s motion for mistrial. The McCorgary court concluded the defendant failed to demonstrate he suffered substantial prejudice from the jury panel hearing the comment. 224 Kan. at 687.
In Ferguson, a prospective juror stated on voir dire that he believed the police had to have substantial evidence before filing charges; the juror was dismissed, and the defendant moved for mistrial. The trial court instructed the jury pool not to consider the comments, examined the pool members to insure that the comment had not hindered their impartiality, and denied the defendant’s motion for a mistrial. The Ferguson court concluded the trial court took adequate steps to insure that the defendant had not been prejudiced, and the defendant had failed to demonstrate prejudice on appeal. 228 Kan. at 529-30.
Defendant’s attempts to distinguish this case from Ferguson because here, although the district court dismissed the prospective juror and admonished the panel to disregard the comment, the district court did not question the jury pool for prejudice. The Ferguson court, however, cited approvingly to McCorgary where the trial court took precisely the same precautions as in this case, and on appeal the court concluded such precautions were sufficient. 228 Kan. at 529-30. Most importantly, as in both McCorgary and Ferguson, defendant has failed to demonstrate the district court’s admonition was insufficient to prevent substantial prejudice against him.
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|
Rulon, J.:
V.A., the natural father of Baby Boy S., appeals from the district court’s order terminating his parental rights and approving the adoption of Baby Boy S.
Essentially, we must decide if:
• Kansas adoption statutes as applied to the natural father violate the Due Process Clause of the United States Constitution,
• substantial competent evidence supports the district court’s finding that the natural father lacked reasonable justification for his failure to support the natural mother during 6 months immediately preceding the birth of Baby Boy S., and
• substantial competent evidence supports the district court’s finding that the natural father was an unfit parent.
We affirm.
FACTS
Baby Boy S. was bom on April 26,1994, in Wichita, Kansas, and his natural mother, R.S., relinquished the newborn infant to the Adoption Centre, Inc., of Kansas, a licensed adoption agency. R.S. left Wichita in May 1994 and moved to North Carolina.
Baby Boy S. was placed with adoptive parents residing in Wichita on April 29, 1994. A petition for adoption was filed on June 8, 1994. Under K.S.A. 59-2133(b), notice of the adoption proceeding was served on V.A. on July 7, 1994. V.A. timely filed objections to the adoption and requested custody of the infant. V.A. at all times was a resident of Ohio.
Later, a petition to terminate V.A.’s parental rights was filed. Ultimately, the district court ordered V.A.’s parental rights terminated under K.S.A. 59-2136(h)(2) and (h)(4).
The findings of the district court can be summarized as follows: R.S. left her parents’ home in Whitehouse, Ohio, in May 1993 when she completed high school. She immediately moved in with V.A. and his parents in Toledo, Ohio. The relationship between R.S. and V.A. was tumultuous from the start due to V.A.’s dislike of R.S.’s parents. R.S. left V.A. following a dispute about her parents.
By early July 1993, R.S. was again living with V.A. and his parents. In early August 1993, a home pregnancy test indicated R.S. was pregnant. V.A.’s parents took R.S. to their doctor, who confirmed the pregnancy and estimated the baby’s due date as April 26, 1994. R.S. had three or four doctor visits with V.A.’s family physician. V.A.’s family took her to get a medical card through a state program. Unquestionably, V.A. knew that the baby was due at the end of April 1994.
While living with V.A.’s family, R.S. and V.A. did not pay any hving expenses. In late August 1993, V.A. had a fight with his family about R.S. V.A. was so angry that he threw food and furniture and broke holes in the doors at his parents’ residence. R.S. and V.A. were then told to move out.
After leaving V.A.’s parents’ home in September 1993, R.S. and V.A. lived with several friends but eventually lived in their own apartment. R.S. signed the lease and arranged for the utilities, believing that V.A., who was working, would pay for them. After a fight with V.A., R.S. left on September 18, 1993, and returned to her parents’ home.
Eventually, V.A. asked R.S. to resume their relationship. While he promised to be responsible for the baby, there was no offer of money, housing, or maternity clothes, nor did he offer to handle the medical bills associated with prenatal care or delivery. According to R.S,, V.A. was only concerned with renewing their relationship and did not inquire about the pregnancy.
About Thanksgiving 1993, R.S. moved out of her parents’ house, moved in with a girlfriend, and began considering putting the baby up for adoption. She contacted a lawyer in Toledo who gave her a booklet of couples looking for babies. R.S. chose a couple who happened to live in Wichita, Kansas. She denied knowledge of any difference in the laws of Kansas or Ohio and testified that her lawyer did not suggest a Kansas couple. V.A. knew R.S. had left her parents’ home.
Around Christmas 1993, R.S. and V.A. met accidently at a local shopping mall. He shouted at R.S. and chased her and one of her girlfriends into a store. She and her girlfriend were frightened. The girlfriend told V.A. that R.S. had lost the baby because of a miscarriage. Whether R.S. confirmed the miscarriage to V.A. was disputed. Although he was uncertain if R.S. was still pregnant, V.A. made no effort to follow up to determine the status of the pregnancy.
Eventually, in December 1993, R.S. began living with a new boyfriend, A.T., in his parents’house in Ohio.
In early January 1994, V.A. received correspondence from a Texas adoption agency, indicating that R.S. desired to put her unborn child up for adoption. He called the agency to express his opposition to the adoption. Later, he approved a'letter drafted,by his father’s attorney opposing the adoption, expressing his intention to keep the child and conveying a written acknowledgement of paternity. V.A.’s copy of the letter included a hand-written note from the lawyer to V.A.’s father stating that the response “should take care of the situation until the baby is bom.” V.A. had no direct contact with the lawyer.
V.A. did not tell the Texas agency he would support the mother during her pregnancy. He did not ask for R.S.’s address, nor did he ask the agency to convey any message offering support. He did not contact R.S.’s family or any of her known friends to offer financial support or to express his opposition to the adoption. ■
A.T. and R.S. moved to Wichita in February 1994. The Adoption Centre helped them find an apartment and paid their bills. R.S. obtained a listed phone number under her name.
After receiving the Texas adoption agency letter, V.A. also contacted a cousin of R.S. In April 1994, R.S.’s cousin told V.A. that R.S. was somewhere in Kansas. Between the end of April (the due date) and June 7, 1994, V.A. did not contact the Texas adoption agency, R.S.’s family, or her friends to determine if the baby had been bom.
In June 1994, V.A.’s father learned of an agency called Find People Fast and requested that they locate R.S. Eventually, V.A. learned of R.S.’s location in Wichita. He did not attempt to contact her even though he knew the baby probably had been bom in late April. He did not contact an attorney to discuss custody, visitation, or what he needed to do to establish or preserve his relationship with the child.
V.A. first received confirmation of the baby’s birth on July 5, 1994, when a private investigator hired by the Adoption Centre contacted him. He was served with notice of the adoption proceeding on July 8, 1994. Prior to that time, he had no knowledge that anyone other than R.S. had custody of the baby.
Based upon the above findings, the district court concluded that V.A. failed to provide support for R.S. during the 6 months prior to the child’s birth and did not have reasonable cause for not providing support. The district court relied upon V.A.’s failure to offer any form of financial support to the mother after she moved out of their apartment on September 18,1993; that V.A. had disposable income which was available to provide support; and that V.A. and/ or his parents forwarded unpaid doctor bills and utility bills to R.S.’s parents for payment. The court concluded that V.A. did not pursue all the opportunities and options available to him to carry out his duties.
The district court, in an alternative finding, terminated V.A.’s parental rights on the ground that he was an unfit parent. The court relied upon his failure to make financial arrangements to pay for prenatal care or delivery of the baby. The court found that V.A. was consumed with his personal desire to maintain a relationship with R.S. rather than caring about the unborn child. The court further found that V.A. had a violent temper, evidenced by his damage to property during his fits of anger, to the extent that he was asked to move out of his parents’ home. The court further found that V.A. had violated the law by smoking marijuana.
DUE PROCESS
We must decide if the provisions of K.S.A: 59-2136(h) can be applied here to terminate the father’s parental rights to Baby Boy S.
K.S.A. 59-2136(h) provides:
“[T]he court may order that parental rights be terminated, upon a finding by clear and convincing evidence, of any of the following:
(4) the father, after- having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the six months prior to the child’s birth;
(5) the father abandoned the mother after having knowledge of the pregnancy.” (Emphasis added.)
V.A. argues that due process requires that he be put on fair notice of die actions or inactions that could result in the termination of his parental rights. Because he was not a Kansas resident and could not-anticipate the mother moving to Kansas, V.A. argues that application of Kansas law violated his constitutional right to due process. He argues that application of Kansas law impermissibly allows unwed mothers to "forum shop” for jurisdictions with stricter statutes to prevent unwed fathers from opposing an adoption. He claims he was entitled to fair warning of the required or proscribed actions which might have resulted in the loss of his parental rights.
V.A. cites to various cases where statutes providing for termination of parental rights were held unconstitutionally vague and insufficient to warn parents of conduct which could result in termination of their parental rights. However, he does not argue that K.S.A. 59-2136 is unconstitutionally vague. Instead, he argues that he had no way of knowing that K.S.A. 59-2136 would apply and, consequendy, he did not know that his failure to support the mother could result in the termination of his parental rights.
V.A.’s claims essentially raise conflict of law questions, and such issues can implicate due process standards in some circumstances. The United States Supreme Court has long recognized that a certain set of facts giving rise to a cause of action might justify the application of the law of more than one state. See Watson v. Employers Liability Corp., 348 U.S. 66, 72-73, 99 L. Ed. 74, 75 S. Ct. 166 (1954). In analyzing the due process principles in conflicts cases, the Supreme Court has said:
“In deciding constitutional choice-of-law questions, whether under the Due Process Clause or the Full Faith and Credit Clause, this Court has traditionally examined the contacts of the.State, whose law was applied, with the parties and with the occurrence or transaction giving rise to the litigation. [Citation omitted.] In order to ensure that the choice of law is neither arbitrary nor fundamentally unfair [citation omitted], the Court has invalidated the choice of law of a State which has had no significant contact or significant aggregation of contacts, creating state interests, with the parties and the occurrence or transaction.” Allstate Ins. Co. v. Hague, 449 U.S. 302, 308, 66 L. Ed. 2d 521, 101 S. Ct. 633 (1981).
The Hague Court further noted that when considering conflict of law questions “for a State’s substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitraiy nor fundamentally unfair.” 449 U.S. at 312-13.
V.A. does not challenge the Kansas court’s jurisdiction over the adoption proceeding. R.S. had openly been a Kansas resident for at least 60 days prior to the birth of Baby Boy S. The child was bom in Kansas and was relinquished to a Kansas adoption agency. The child has resided in Kansas with a Kansas adoptive family throughout the proceeding. Kansas has an interest in ensuring that children bom and residing in this state are adequately provided for by responsible adults. When parents relinquish or otherwise ignore their parental obligations to a child living in Kansas, this state has a compelling interest in ensuring the child’s well-being and, when appropriate, to ensure the children are adopted by responsible and caring families. Consequently, under the facts of this case, we conclude Kansas has significant contacts creating state interests in applying its laws.
When considering fairness in the context of a conflicts issue, an important element is the expectation of the parties. A state “ ‘may not abrogate the rights of parties beyond its borders having no relation to anything done or to be done within them.’ ” Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 822, 86 L. Ed. 2d 628, 105 S. Ct. 2965 (1985) (quoting Home Ins. Co. v. Dick, 281 U.S. 397, 410, 74 L. Ed. 926, 50 S. Ct. 338 [1930]). In Shutts, the Court invalidated the Kansas Supreme Court’s decision to apply Kansas law to all gas leases involved in a class action, even though a vast majority of the leases and property owners had no connection with Kansas.
Applying Kansas law to the facts in this case does not unconstitutionally impair the reasonable expectation of the parties. It is not unreasonable for parties to expect that the standards for parental obligations would be determined by the laws of the state where the child resides. This is consistent with Restatement (Second) of Conflict of Laws § 289 (1969), which provides that local law should control in cases of adoption.
Under these facts, it might also be constitutionally permissible to apply Ohio law. However, we believe Ohio’s state interests are more tenuous than those of Kansas. R.S. left Ohio prior to the birth of the child and has not returned since. The child was bom in Kansas. In our current mobile society, the place of conception of a child carries little weight. However, requiring an unwed father to make substantial efforts to remain in contact with an unwed mother and participate in the pregnancy and birth of the child, wherever it occurs, is not an unreasonable expectation.
Although V.A. likens R.S.’s travels to a helium balloon, he was aware that she was no longer living at her parents’ home and knew almost 4 months before the baby’s birth that she was considering an out-of-state adoption. However, he made no serious efforts to locate her whereabouts. The district court specifically found that .R.S. did not move to conceal herself. Likewise, she testified that she did not choose to put her baby up for adoption through a Kansas agency in order to impose stricter parental obligations on the father.
V.A. relies heavily on the “fundamental” nature of his parental rights to emphasize that the law of his residence should control in this case. However, his actions (and inactions) minimized his liberty interest in initiating a parental relationship with Baby Boy S. This court explored the nature of an unwed father’s interest in the parent-child relationship in In re Baby Boy N., 19 Kan. App. 2d 574, 874 P.2d 680, rev. denied 255 Kan. 1001, cert. denied 513 U.S. 1018 (1994). In Baby Boy N., this court upheld the constitutionality of K.S.A. 59-2136(h)(4), (5). In that case, an unwed father challenged the statute, arguing that his parental rights could not be terminated absent a specific finding that he was an unfit parent. ,19 Kan. App. 2d at 579. This court, in studying United States Supreme Court precedent, noted:
“There is every reason for protecting the rights of a father to children, illegitimate or not, whom he has reared, loved, and supported. This is the true parental right which we protect, and it involves not only the individual rights of the father but the broader concept of family, which is also entitled to protection. By the same token, where the father’s ‘right’ is purely biological and there has been no family formed, no bonding, no support, and no love, that right seems to be obviously less deserving of support. Those instances specified under K.S.A. 38-113a and K.S.A. 1993 Supp. 59-2136(h)(l)-(7) in which consent may be declared unnecessary are examples of situations in which the right of a natural father is little more than biological.” 19 Kan. App. 2d at 583-84.
The above reasoning is consistent with United States Supreme Court standards in Lehr v. Robertson, 463 U.S. 248, 77 L. Ed. 2d 614, 103 S. Ct. 2985 (1983). In Lehr, the Court held:
“When an unwed father demonstrates a full commitment to the responsibilities of parenthood by ‘comfing] forward to participate in the rearing of his child,’ [citation omitted] his interest in personal contact with his child acquires substantial 'protection under the Due Process Clause. At that point it may be said that he ■‘act[s] as a father toward his children.’ [Citation omitted.] But the mere existence of a biological fink does not merit equivalent constitutional protection.” 463 U.S. at 261.
Various state courts have addressed whether the application of forum law violated the due process rights of an unwed out-of-state father. All of these cases rely on the United States Supreme Court cases of Lehr and Caban v. Mohammed, 441 U.S. 380, 60 L. Ed. 2d 297, 99 S. Ct. 1760 (1979), in examining the statutes and facts in each case.
The Indiana Court of Appeals’ decision in B.G. v. H.S., 509 N.E.2d 214 (Ind. App. 1987), is not unlike the facts before this court. In B. G., an unwed father challenged the adoption of his child in Indiana. The child’s father and mother had lived together in Florida, where the baby was conceived. The father learned of the pregnancy 6 months before the baby’s birth and before the mother returned to her family in Indiana. Several months before the baby’s birth, the father sent a certified letter to the mother’s parents acknowledging paternity, offering support, and stating his intent to refuse to consent to an adoption. The baby was bom, and the mother signed a consent for adoption shortly thereafter. The father challenged the adoption, arguing that the Indiana statute requiring an expectant father to file a notice of paternity was unconstitutional.
The Indiana Court of Appeals reviewed the extent of the father’s due process rights, noting that the Court in Lehr distinguished between a developed parent/child relationship and a mere biological link. 509 N.E.2d at 215. The court noted that Indiana law permitted an expectant father to file a paternity action prior to the birth of the child, holding that it was “not unreasonable to require, that in order to protect this opportunity [to establish a parent/child relationship], an unwed father be required to take a step toward establishing such a relationship and toward accepting such responsibilities.” 509 N.E.2d at 216. The court concluded that the father’s untimely paternity action should be dismissed. 509 N.E.2d at 217.
Similarly, in Mullis v. Kinder, 568 N.E.2d 1087 (Ind. App. 1991), the court upheld the constitutionality of the Indiana law applied in an adoption proceeding. The adult father was a Florida resident. The infant was conceived in Florida, and, thereafter, the 15-year-old mother returned to Indiana. The mother placed the baby up for adoption. The natural father objected to the adoption approximately 5 weeks after the petition for adoption was filed. The trial court held that the father’s consent was not necessary based upon an Indiana statute which provided that a natural father’s consent was not necessary when the pregnancy was the result of “child molestation.” The father appealed, challenging the constitutionality of the application of the statute because he did not have notice of the “ ‘potential future implication’ of the [Indiana] act” and relying on the principle of being entitled to notice of wrongful conduct. 568 N.E.2d at 1090. The Indiana Court of Appeals rejected the father’s arguments by ruling that ignorance of Indiana law was “no excuse.” 568 N.E.2d at 1090.
Finally, V.A.’s reliance on Ohio law defining the obligations of unwed fathers provides little support for his arguments. As noted below, Ohio law provides that in certain circumstances, failure to financially support an unwed mother during her pregnancy may make the unwed father’s consent unnecessary in an Ohio adoption. See In re Adoption of Klonowski, 87 Ohio App. 3d 352, 354-56, 622 N.E.2d 376 (1993); In re Adoption of Hart, 62 Ohio App. 3d 544, 552, 577 N.E.2d 77 (1989).
For the above reasons we conclude that the application of Kansas law in this case did not deprive V.A. of any substantive or procedural due process rights.
REASONABLE JUSTIFICATION
V.A. does not challenge the sufficiency of the evidence supporting the district court’s factual findings that he did not support the mother during the 6 months before the birth of Baby Boy S. Instead, he argues that the facts found by the court fail, as a matter of law, to establish that the failure to support the mother was without “reasonable cause.”
Our standard of review in a case where the district court has made findings of fact and conclusions of law has been defined as follows:
“ When findings of fact are attacked for insufficiency of evidence or as being contrary to the evidence, the duty of the appellate court extends only to a search of the record to determine whether substantial competent evidence exists to support the findings. An appellate court will not weigh the evidence or pass upon the credibility of the witnesses. Under these circumstances, the reviewing court must review the evidence in the fight most favorable to the party prevailing below.’ ” In re Baby Boy N., 19 Kan. App. 2d at 586 (quoting In re Adoption of F.A.R., 242 Kan. 231, Syl. ¶ 2, 747 P.2d 145 [1987]).
V.A. argues, however, that since he has not challenged the district court’s factual findings, this court can review de novo the district court’s conclusion that he lacked reasonable cause for failing to support the mother. A similar argument was rejected by our Supreme Court in In re Adoption of Baby Boy B., 254 Kan. 454, 866 P.2d 1029 (1994). Because the testimony was conflicting in this case, de novo review is not appropriate. See 254 Kan. at 458-60. The fact that the father does not specifically challenge the district court’s findings does not change the standard of review.
Determining whether the father has failed without reasonable cause to provide support for the mother during the 6 months prior to the child’s birth as required by K.S.A. 59-2136(h)(4) is “ 'analogous to cases where the trial court must determine if a parent has failed or refused to assume the duties of a parent for two consecutive years prior to an adoption pursuant to K.S.A. 1990 Supp. 59- 2136(h)(7),'” In re Baby Boy N., 19 Kan. App. 2d at 587 (quoting In re Adoption of Baby Boy S., 16 Kan. App. 2d 311, 313, 822 P.2d 76 [1991]). In making this decision, all relevant surrounding circumstances must be considered and may include the father’s conduct more than 6 months before the birth of the baby. 19 Kan. App. 2d at 587. “[W]here a trial court finds that a father’s, reasonable efforts to provide for his child’s welfare failed because of interference by die-mother, adoption agency, or adoptive parents, the statute should not operate to terminate his parental rights.” 19 Kan. App. 2d at 585.
As in the case of In re Baby Boy N.¡ there is no dispute here that the father provided no support, financial or otherwise, to the mother in the 6 months before she gave birth. V.A. argues that he had reasonable cause for failing to support the mother during the last 6 months of her pregnancy. V.A. argues that he was represented by counsel during the 6-month period and relied upon his attorney’s representations that he need take no action. He' states that the legal advice he received was correct in the two jurisdictions in question — Texas and Ohio.
A putative father’s reliance on legal advicé was rejected as "reasonable cause” in a case substantially similar to the facts here. In In re Baby Boy N., 19 Kan. App. 2d 574, the putative fáther challenged the district court’s finding that his parental rights should be terminated for failing to support the Child’s mother during the last 6 months of her pregnancy. 19 Kan. App. 2d at 575-76. The father argued that he consulted with an attorney as to what legal steps could be taken to prevent the adoption and was told there was nothing he could do until the child was bom. This court upheld the trial court’s finding that “the mere fact that [the father] could do nothing to prevent the adoption of the child prior to its birth did not constitute a reasonable excuse for his failure to provide support.” 19 Kan. App. 2d at 588.
The district court in this case found that the only evidence of V.A.’s reliance on any legal advice was that he approved á letter sent to the Texas adoption agency to oppose the adoption. The court found that, at best, the attorney’s message to V.A/s father was that the letter to the agency “should take care of the situation until the baby is bom.” Notwithstanding the indication that action needed to be taken once the baby was bom, the court found that V.A. did little after the baby’s anticipated due date to locate the child, assert parental rights, or assume parental responsibilities. There is no evidence that V.A. had any direct contact with his attorney, even after the baby’s birth, until he was served with the petition for adoption. Moreover, there is no evidence that he had an ongoing attomey/client relationship during this period. Consequently, there is substantial evidence to support the district court’s decision that his purported reliance on the note from his father’s lawyer was not “reasonable cause” for his failure to support the mother during her pregnancy.
A review of Ohio law also undermines V.A.’s claim that his failure to support the mother was justified. Here, V.A. repeatedly asserts that failure to support a pregnant mother is not grounds for termination of parental rights under Ohio law. This is simply not the case. Ohio law provides that a putative father’s consent is required before adoption if the father files an objection within 30 days of the filing of the petition or placement for adoption. Ohio Rev. Code Ann. § 3107.06(F)(4) (Anderson 1989). The adoption statutes further state, however, that consent of an unwed father is not necessary if he files an untimely objection with the court and, after notice and hearing, the court finds the putative father willfully failed to care for and support the child or abandoned the mother during her pregnancy. Ohio Rev. Code Ann. § 3107.07(B) (Anderson 1989).
V.A. argues that he did not abandon R.S., but that she left him. However, Ohio courts do not interpret Ohio Rev. Code Ann. § 3107.07(B) that narrowly. The scope of § 3107.07(B) was addressed by the Ohio Court of Appeals in In re Adoption of Hart, 62 Ohio App. 3d 544. In Hart, the court noted that the mother spent the last 5 months of her pregnancy with her parents and was supported by welfare. The father had provided no support for her during that time, other than paying for one prenatal blood test. Although the mother and child lived with the putative father and his parents for several months after the birth of the child, all support was provided by the child’s grandparents rather than the fa ther. Under those circumstances, the appellate court upheld the finding of willful failure to support the mother during the pregnancy and the child after his birth. 62 Ohio App. at 553. Thus, “abandonment” under the Ohio statute includes failure to financially support the mother during pregnancy. See also In re Adoption of Youngpeter, 65 Ohio App. 3d 172, 175-76, 583 N.E.2d 360 (1989) (under Ohio law, a putative father has an obligation to support his minor child, including the payment of medical expenses attributable to the pregnancy of the mother).
Both Kansas law and Ohio law have held that substantial interference by the custodial parent preventing the other parent from supporting and interacting with the child can be grounds to preclude a finding that the child has been abandoned. See In re Adoption of F.A.R., 242 Kan. at 237; In re Adoption of Klonowski, 87 Ohio App. 3d at 354-56; In re Adoption of Youngpeter, 65 Ohio App. 3d 176-78.
Here, V.A. failed to establish, however, that R.S. or her family substantially impaired any effort on his part to support R.S. during her pregnancy. Although he claimed that he offered financial support immediately after the mother left him, the district court found that no offer.of support had been made. The court also determined that even if some offer was made, it was R.S/s father, not R.S., that rejected support. In light of R.S/s known tenuous relationship with her parents, the court’s refusal to consider this one incident as “reasonable cause” is supported by substantial evidence.
Notwithstanding R.S.’s decision to leave V.A., he was not precluded from asserting his parental rights. There were several avenues he could have taken to reflect his intent to assume his parental responsibilities. Ohio law allows any man claiming paternity to bring an action to determine the existence or nonexistence of paternity. Such an action can be filed prior to the child’s birth, although a contested paternity action will be stayed until the child’s birth. Ohio Rev. Code Ann. § 3111.04(A), (C) (Anderson 1989). A paternity action may be brought in the county where the child, the child’s mother, or the alleged father resides. Ohio Rev. Code Ann. § 3111.06(A) (Anderson 1989).
In addition, Ohio law permits a natural father to file an acknowledgement of paternity in the county where the father resides once the child is bom. Ohio Rev. Code Ann. § 2105.18(A) (Anderson 1994). The filing of such an acknowledgement creates a presumption of paternity. Ohio Rev. Code Ann. § 3111.03(B) (Anderson 1989).
V.A. additionally argues that he had reasonable cause not to support the mother because (1) there was no evidence that the mother was deprived of adequate housing, clothing, food, or medical attention; (2) the mother broke her marriage engagement with him, thereby reducing his obligation to support her; and (3) the mother began cohabiting with another man. These arguments are groundless.
Neither Kansas law nor Ohio law requires an unwed father to provide support only if the mother has no other source of financial support. See, e.g., In re Adoption of Hart, 62 Ohio App. 3d at 553-54 (support from grandparents did not prevent finding of father’s willful failure to support mother and child). V.A. had no idea whether R.S. was receiving support from any source — her parents, her new boyfriend, or any governmental agency — because he chose to remain ignorant of the mother’s whereabouts and circumstances.
V.A. additionally relies on general authorities controlling a husband’s liabilities for necessaries furnished to the wife and an ex-husband’s obligations to pay alimony when the ex-wife cohabits with another man. These authorities have no relevance to whether his parental rights should be terminated. As noted above, “[t]hose instances specified under K.S.A. 38-113a and K.S.A. 1993 Supp. 59-2136(h)(l)-(7) in which consent [to adoption] may be declared unnecessary are examples of situations in which the right of a natural father is little more than biological.” In re Baby Boy N., 19 Kan. App. 2d at 584. In essence, the mother’s merit or character is not relevant to whether an unwed father is obligated to support the mother during her pregnancy in order to protect his rights to the unborn child.
For the above reasons, we conclude the district court’s finding that V.A., without reasonable cause, failed to support the mother during the 6 months prior to April 26, 1994, is supported by substantial evidence.
UNFIT PARENT -
Finally, V.A. challenges the district court’s finding that he was an unfit parent. He argues that this portion of the district court’s order was not supported by substantial evidence.
The standard of review in a case involving the termination of parental rights is whether there is substantial competent evidence in the record to support the trial court’s decision that the parent was unfit and that the parental rights should be terminated. In re S.M.Q., 247 Kan. 231, 240, 796 P.2d 543 (1990). Although the State has the burden to prove “unfitness” by clear and convincing evidence before the district court, the clear and convincing standard does not affect this court’s scope of review. See 247 Kan. at 240. This court cannot reweigh the evidence, substitute its evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses. The court must review the evidence in the light most favorable to the party prevailing below. 247 Kan. at 234; In re T.D.W., 18 Kan. App. 2d 286, 289-90, 850 P.2d 947 (1993).
A parent must be found “unfit” by the trial court before parental rights maybe severed. K.S.A. 1994 Supp. 38-1583(a); In re M.M., 19 Kan. App. 2d 600, 607, 873 P.2d 1371 (1994). “ ‘The term “unfit” is defined to include inherent mental and emotional incapacity to perform parental obligations which can constitute such breach of parental duty as to make the parents unfit to be entrusted with custody of their child.’ [Citation omitted.]” In re N.D.G., 20 Kan. App. 2d 17, 21, 883 P.2d 89, rev. denied 256 Kan. 995 (1994); see In re M.D.S., 16 Kan. App. 2d 505, 508, 825 P.2d 1155 (1992).
Briefly said, we have considered the record in light of our standard of review and firmly conclude that the district court did not err in terminating V.A.’s parental rights because he was an unfit parent.
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The opinion of the court was delivered by
DawsoN, J.:
These were two actions, consolidated, to determine the ownership of certain shares of bank stock formerly owned by the late Charles H. McKee and which in his lifetime he placed in escrow with James H. Elliott.
Plaintiff, who is McKee’s administrator, alleged that the bank stock was delivered to Elliott for safe-keeping; that defendant J. C. McClain wrongfully claimed that Elliott should hold the stock for him, but that plaintiff was uninformed as to the nature of the claims of McClain and Elliott to the bank stock. Plaintiff claimed the right of possession of the stock, and damages.
The defendant Elliott filed four successive answers, in each of the first three of which he alleged that he merely held the bank stock in escrow pursuant to a real-estate contract between Charles H. McKee and the defendant McClain, and that McClain had not relieved him of responsibility as such escrow holder. In these three answers he also briefly pleaded the nature of the business transaction between McKee and McClain which gave rise to the escrow. In Elliott’s fourth answer, he alleged that he was informed and believed that on November 23, 1917, McKee and McClain had made a contract for the purchase of 80 acres of land belonging to McClain, at an agreed price of $5,200, and that McClain had agreed to accept the bank stock at a valuation of $1,700, and that McKee was to pay the balance in cash or by assumption of a mortgage, and that McClain thereupon' gave McKee a written memorandum acknowledging the sale of the land by him and acknowledging receipt of McKee’s bank stock at a valuation of $1,700 to be deducted from the price of the land. This paper was signed by McClain, and delivered by McClain to Elliott, to be held in escrow until the $3,500 was paid, and then the bank stock was to be surrendered to McClain. Elliott’s answer further alleged that McClain had fully performed, and that on March 27, 1918, McKee voluntarily defaulted in the payment of the $3,500 and attempted to rescind the contract, and notified McClain in writing to that effect. Defendant Elliott further alleged that McKee thereby forfeited the bank stock* and that it thereby became the property of McClain, and that he, Elliott, should not be required to surrender it until the equitable rights of McKee and McClain were adjudicated; and, further, that McClain claimed the bank stock and.that defendant feared a personal liability to McClain if he should surrender it.
The defendant, J. O. McClain, answered, alleging that on November 23,1917, he made a contract with McKee to sell to the latter 80 acres of land for $5,200 and that McKee agreed to'and did pay and deliver to defendant the bank stock at an agreed price of $1,700, and agreed to pay the balance, $3,500, in cash or by assumption of a, mortgage; and that it was verbally agreed between McKee and McClain that if McKee did not perform the bank stock should be forfeited, and that at the time he delivered to McKee a memorandum as follows:
“Hallowell, Kansas, 11/23/1917.
“Received of C. H. McKee One Certificate number 7, for five shares of stock of the Hallowell State Bank. Also one receipt of James H. Elliott for an additional five shares, same to be figured at $1,700.00, and to be deducted from the purchase price of the North Half of North West Quarter, Section three, Township thirty-three, Range Twenty-two, in Cherokee County, Kansas. The balance to be paid or assumed at $3,500.00. I agree to pay all in-' terest to date of the receipt, and 'to pay the tax for the year 1917. This deal is made suhject to the lease for oil now in effect, which I will assign to McKee. Also subject to lease of present tenant. Abstract to be furnished.
' “J. O. McClain.”
McClain further alleged that he delivered the bank stock to Elliott to be held in escrow until the $3,500 was paid or mortgage assumed, “and until the things to be done in said written memorandum had been' complied with by defendant”; that Elliott was to surrender the stock to him when McClain complied therewith, but that notwithstanding performance on his part, McKee, without McClain’s consent, on March 27, 1918, defaulted in payment of the balance of the purchase money and attempted to rescind the contract, and wrote to McClain as follows:
St. Joseph, Mo., Mar. 27, 1918.
"Mr. J. 0. McClain, St. Joseph, Mo.
“Dear Sir: “This is to notify you that I have this day decided not to buy the land known as the Porter Else Farm, the sale and purchase of which was contracted between us some time ago. And I hereby instruct James Elliott to return to you all papers, deeds, etc., in his hands. And also ask you to order him to return same to me. Assuring you that there is no bad feeling in the matter on my part. Very truly, C. H. McKee.”
McClain further answered that by such rescission- and failure and default McKee had forfeited the bank stock, and that full title thereto vested in defendant and that he was its owner.
The plaintiff’s reply to Elliott’s answer alleged that McClain had forfeited all rights in-the contract and that he was not in a'position to convey to McKee good title to the land. Plaintiff’s reply to McClain’s answer was to the same effect.
The cause was tried without a jury, and judgment was entered for plaintiff.
The defendants appeal, assigning various errors; but in their brief they say: -
“There is really only one question for this court to determine, and that is whether Charles H. McKee and J. O. McClain on November 23, 1917, entered into a* valid contract for the sale and purchase of the Porter Else farm, and more particularly described in the statement given by McClain to McKee.”
If such is the only question it must be answered in the negative so far as McKee was concerned. If it be true that-on November 27, 1917, the defendant McClain executed and delivered to McKee1, or to Elliott as escrow holder, the written memorandum purporting to have been signed by him, then of course McClain would be bound by its terms. The memorandum bound its maker. (Guthrie v. Anderson, 49 Kan. 416, 419, 30 Pac. 459; Wiley v. Hellen, 83 Kan. 544, 112 Pac. 158.) But it did not bind McKee. He did not sign it. (Guthrie v. Anderson, 47 Kan. 383, 28 Pac. 164.) But even if Me- Clain’s written receipt and acknowledgment and McKee’s written assignment of his bank stock were construed together to constitute a written contract so as to satisfy the statute, McKee’s default was not conclusively established. McKee is dead; his mouth is closed; his administrator was at a considerable disadvantage in establishing his cause of action, but he managed to show that defendant Elliott claimed and pleaded time and again to be no more than an escrow holder. He managed to show also that even assuming the authenticity of McClain’s memorandum, McClain was not in a position to convey good title, because on August 29, 1917, he had conveyed the land to J. B. Fink. McClain’s testimony, which was clearly incompetent under section 320 of the civil code (Jaquith v. Davidson, 21 Kan. 341, 347, 348; Wilson v. Colborn, 106 Kan. 440, 180 Pac. 430), sought to explain this by showing that there was an oral understanding between himself and McKee that the deed to the land was to be made by J. B. Fink.
. “I told him deed to the land would be made b3r J. B. Fink and would be placed in the hands of James H. Elliott for delivery when the abstract had been prepared showing a merchantable title. McKee said that we would delegate James H. Elliott to hold all papers in escrow in the bank at Hallowell, ponding the preparation of the abstract and delivery of the deed.”
But it'was also shown by the records of the register of deeds that this man Fink had conveyed the land to one James Zimmerman by warranty deed dated November 22, 1917, which was the day before the McKee-McClain agreement was made. Defendant Elliott’s testimony was that the deed to Zimmerman was dated March 9, 1918, and that the land was transferred to Zimmerman on that date; but of course this oral testimony as to the date of the deed was not the best evidence and could hardly be given credence in the face of the record.
Plaintiff also produced testimony tending to show that McKee never did deliver the bank stock to McClain but gave it direct to Elliott, the escrow holder:
“My father handed the stock to Elliott and told him to hold it until he looked into it further. He did not say anything about the forfeiture of the stock when he gave it to Elliott.”
Another witness for plaintiff, Dresia, testified that McClain told him that on November 23, 1917, the day the contract for the land was made, he had sold the bank stock to Elliott.
From the foregoing it is clear that plaintiff’s cause of action was sufficiently established to surmount a demurrer to the evidence, and to reduce the controversy to a question of fact for the trial court’s determination. The competent evidence for the defendants did not greatly weaken the plaintiff’s case, since the trial court was not bound to believe the testimony adduced in their behalf. Moreover, some features of it tended to discredit the defense.
In Elliott’s first, second and third successive answers, filed months apart, he professed to be no more than a mere escrow holder of the bank stock, and his fourth answer was to the same effect. McClain’s deposition in part reads:
“I sold to Elliott the ten shares of bank stock referred to for $1,700. Elliott has paid me at various times nearly all of the $1,700, but to my recollection there is yet an unsettled difference between Elliott and me in reference to the balance due and which could not be finally settled pending the court actions in these cases.”
Elliott himself testified,:
“I paid the $1,700 for this stock at different times. I contracted to purchase it on November 23, 1917. I gave McClain credit.”
On rebuttal the plaintiff showed that Elliott told witness Mc-Caskill:
“The bank commissioner told me not to pay anything out on that (dividends on the bank stock) until it was settled up.”
A witness for plaintiff had asked Elliott if he would turn over the stock if a bond were given him to protect him against McClain, and Elliott answered: “Yes, that is all I want.”
Here then was a fact case, where the plaintiff showed that he, as McKee’s administrator, was the owner of the stock; that the escrow purposes had failed for defect of McClain’s title; that McKee in his lifetime had asserted his right to the return of the stock; that McClain had no right to it, and moreover that he had sold to Elliott whatever color of right to it he had; and that Elliott had pleaded that he had no concern in it except as escrow holder and yet inconsistently he testified that he had acquired it by purchase from McClain.
The trial court’s determination of the disputed facts in issue, being based upon competent and substantial although disputed testimony, is binding on appeal (Lumber Co. v. Workman, 105 Kan. 505, 508, 185 Pac. 288), and here, as there was no jury to be misled by incompetent evidence, the admission of any such incompetent testimony, whether for plaintiff or defendants, will be presumed to have been disregarded.- (Heery v. Reed, 80 Kan. 380, 102 Pac. 846; Starbuck v. Kingore, ante, p. 102, 210 Pac. 930.)
We note the comment of defendants’ counsel touching the reopening of the case for the purpose of permitting McKee’s son to testify to the conversation between McKee and Elliott at the time the bank stock was placed in Elliott’s custody. They say this testimony was an afterthought. Possibly so, but that did not render it incompetent, nor require the, trial court to disbelieve it, nor did its belated admission constitute any abuse of the trial court’s discretion or create a trial error.
Nothing approaching reversible error is presented, and the judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Plaintiff obtained a temporary injunction restraining defendants from harvesting a crop of voluntary wheat grown upon a strip of land approximately fifteen feet wide and a half mile long, which she claimed to own. In the same action she asked for damages for the unlawful interference with her possession of the land during the previous crop season.
A demurrer to plaintiff’s evidence was overruled and defendants offered their evidence. After argument by counsel, the cause was taken under advisement until the next day, when the judge announced that he was unable from the evidence to determine the extent, if any, of the trespass committed by the defendants, and ordered the case continued until next term, and set down for another trial. '
The court also ordered, that unless a further survey of the lands were made before the next term of court, that known as the Early survey would be taken as having established the legal boundaries between the tracts of land in question. The court modified the temporary injunction, keeping it in effect only as to the land lying south of the Early survey.
The appeal is from the order continuing the action until the next term of court; refusing to sustain a demurrer to the evidence, and to render judgment for the defendants upon the evidence; also con- tinning in effect the restraining order. No brief has been filed by the plaintiff. None seems to be necessary.
The order continuing the cause is not a final order and, therefore, not appealable. (Ward v. Sales Co., 98 Kan. 24, 157 Pac. 406.) In that case it was held any error in granting or refusing a continuance must wait until an appealable order is made. While the order modifying the temporary injunction appears to have been in defendants’ favor, we might assume that the order refusing to vacate the injunction is appealable, and that the appeal if otherwise sufficient would bring up for review the various orders complained of. But the abstract contains not a word of plaintiff’s evidence, to which it is insisted the demurrer should have been sustained; and in fact there is no reference in the abstract to any evidence, except a statement that each of defendants testified as to his financial worth. Without the testimony before us upon which the court madé the orders complained of, the assumption would be that the testimony was sufficient to justify the court' in continuing the cause over the term and ordering another trial.
For the reasons suggested, the appeal is dismissed. | [
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The opinion of the court was delivered by
PoRter, J.:
The Protected Home Circle, appellant, is a mutual benefit association incorporated under the laws of Pennsylvania. Prior to 1910, Sarah S. Butcher held two benefit certificates of .$1,000 each, issued by the appellant. At that time she was living in Detroit, Mich., with her husband, William Henry Butcher; who was. the beneficiary named in the certificates. He disappeared in January, 1910, and his wife and family heard nothing further from him. The benefit certificates contained a provision that in the event, of the death of the beneficiary prior to the death of the assured member, “if no other designation be made, the Benefit Fund shall! be paid, first, to the husband or wife 'of the deceased member, if living; if no husband or wife, to children, if living, share and share alike; if no children, to the mother; if no mother, to the father; if no father, to the sisters and brothers, share and share alike. . . .
Subsequent to the disappearance of William Henry Butcher, the benefit certificates were reissued and Christina Hefley, mother of the insured, was made the beneficiary. She died July 18,1911. Without designating a new beneficiary in either certificate, Sarah S. Butcher died on August 31, 1920.
The question is, whether the appellees, who are the brothers and sisters of Sarah S. Butcher, the assured, are entitled to the insurance money; and this depends upon the question whether William Henry Butcher, the husband, is dead. The Boyer-Kruse Mortuary Company was made a party to the action, because it holds an assignment of the certificates as security for payments of the burial expenses of Sarah S. Butcher.
The Protected Home Circle, while acknowledging its liability to pay someone the amount due on the certificates, contends that it it not liable to pay any sum, because of the failure to establish the death of William Henry Butcher. The appellees, the brothers and sisters of Sarah S. Butcher, brought this action to recover upon the benefit certificates, relying upon the presumption of the death of the husband of assured arising from his unexplained absence for more than seven years.
The trial resulted in a judgment in their favor, and the company appeals.
The appellant contends that the court committed error in admitting evidence of statements made by Sarah S. Butcher to Myrtle C. Allen, one of the appellees, relating to the absence of William Henry Butcher, the claim being that the testimony was hearsay. There is no merit in this contention. The evidence was admissible as declarations concerning pedigree, which constitute a separate exception to the hearsay rule. It was admissible as evidence, not only of the facts directly asserted but also o.f such relevant facts as, may be incidentally or inferentially stated; such as the dates of births, deaths and marriages. (22 C. J. 242.) In Smith v. Brown, 8 Kan. 608, 618, it was said:
“The evidence1 was not objectionable on the grounds that it was hearsay, for while it was literally hearsay it was of a kind authorized by law to be given where the facts of descent and relationship, or of birth, marriage and death are in controversy, as in this ease. 1 Greenl. Ev. §§ 103, 104.”
(And see, Tyner v. Schoonover, 79 Kan. 573, 100 Pac. 478.)
Second, there was no error in admitting letters written by members and acquaintances of the family concerning their knowledge of the disappearance and absence of the husband. It would have been error to exclude such evidence. (Mackie v. United Workman, 100 Kan. 345, 164 Pac. 263; Caldwell v. Modern Woodman, 89 Kan. 11, 130 Pac. 642.)
It appears from the testimony of the plaintiffs that in January, 1910, after William Henry Butcher returned- from his work, he disappeared;--that his domestic relations were of the best; he came home one evening, went to the store and never returned; took nothing with him when he left, except the clothing in which he had worked that day, and left his diamond ring at home. His wife viewed more than fifty bodies in morgues during the first year following his disappearance; made inquiries of personal friends and relatives and inquiries of the police, but had never been able to get any word of her husband. Members of the family went to Detroit from Fort Scott to make inquiries concerning Mr. Butcher and to locate him if possible. Inquiries were made of friends and acquaintances of the family there. He was a man-of considerable prominence, and at one time had been president for the state of Michigan of the Protective Home Circle. An advertisement was run in the official paper of the appellant seeking for inquiries of him. There was no particular place, other than Detroit, in which the family of the appellees had. any reason to make a special search. Letters were written to the' state hospitals for insane; former employees and associates were questioned; the local lodges of the order, of which he was a member, were interrogated. It is unnecessary to set out the evidence of the efforts made by the family to discover his whereabouts if living. The rule declared in Modern Woodmen v. Gerdom, 72 Kan. 392, 82 Pac. 1100, and in the other disappearance cases to which we have referred, seems to have been fairly and substantially complied with. We discover no error in the admission of letters written by Myrtle Allen. They were neither hearsay nor self-serving. They were apparently made in-an honest effort to discover, if possible, what had become of William Henry Butcher. It was said in the Gerdom case, supra:
“In order that the presumption of life may be overcome by the presumption of death, there must be evidence, not merely of absence from home or place of residence for the period of seven years, but there must be a lack of information concerning the absentee on the part of those likely to hear from him after diligent inquiry.” (p.-396.) ■ ' "
Finally, it is insisted that because the appellees assigned their interest in the proceeds of the certificates to the mortuary company, the latter is the real party in interest and not the plaintiffs. The defendant quotes the cases of Stewart v. Price, 64 Kan. 191, 67 Pac. 553; Manley v. Park, 68 Kan. 400, 75 Pac. 557. The assignment' was merely for the purpose of security for the payment of burial expenses. The appellant will be fully protected by the judgment against further litigation over the certificates, and is estopped to say that the plaintiffs are not the real parties in interest. In Rullman v. Rullman, 81 Kan. 521, 106 Pac. 52, it was said that in such a situation the question whether or not the case was brought by the real party in interest'should depend upon the inquiry, will the defendant be protected by the judgment rendered against further litigation with some person who may claim to be the real party in interest? The mortuary company by its interplea is bound by the judgment and is doubtless fully satisfied to receive payment of its claim.
We discover no error in the record and the judgment is affirmed. | [
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The opinion of the court was delivered by
HopKINS, J.:
Plaintiff appeals from a judgment of the district court refusing to enforce specific performance of a contract for the sale of land on which was located an elevator and coal sheds. The contract was entered into on the 17th of September, 1921. By its terms plaintiff agreed to sell, and defendant agreed to buy, the real estate for a consideration of $10,000. Plaintiff was to furnish abstracts showing the property free and clear of all encumbrances and a good and sufficient warranty deed. Consideration to be paid when abstract was approved and deed delivered. Machinery in the elevator to be in first-class, workable order, and elevator to be cleaned up before payment made. Possession to be given on or before-October 1.
The property was generally referred to as being a part of lots' 1, 2, 3 and 4 and all of lot 5 in block 18 in the city of Kinsley, and all of the public street lying between block 18 and the right of way of the-Santa Fe railroad.
Plaintiff transmitted abstracts covering said property to the defendant for examination sometime shortly after September. 23. The abstracts, after examination, were returned to the plaintiff for correction. Later, after correction, defendant called the attention of plaintiff to the fact that a considerable portion of said public street, which was known as South Depot street, had never been vacated by the city.
On October 22, defendant notified plaintiff that he elected to consider the contract terminated because of inability of plaintiff to deliver title, and because of the delay, thus defeating the purpose for which defendant was purchasing the property. Sometime after this the city council vacated said public street, which adjoined the right of way of the Atchison, Topeka & Santa Fe railway. On the 6th day of December following, an action was filed by plaintiff against the Atchison, Topeka & Santa Fe Railway Compány to quiet its title to said South Depot street. The railway company disclaimed any interest in said property, and judgment was rendered December 12, 1921, quieting plaintiff’s title. The abstracts were then brought down to date and, on the 14th of December, plaintiff made tender to defendant of title, which was refused.
Complaint is made of the admission in evidence of conversations had between the parties prior to the execution of the written contract. These conversations, on which the court based part of its findings, were to the effect that the defendant desired the use of the elevator during the then grain season; that the grain season was principally during the months of August, September, October and November, and that it was agreed between plaintiff and defendant that the whole deal, including the examination of the abstract, delivery of deed and payment of the consideration, should be on or before -October 1. It is ably argued that such conversations were not permissible because they varied the terms of the written contract.
We do not concur in plaintiff’s contention. The contract was entered into on the 17th of September. It contained no statement as to the time within which plaintiff should show good title or deliver deed, though it did state that possession was to be given on the first of October following. We believe parol testimony was proper to ascertain the intention and understanding of the parties.
In Bank v. Brigham, 61 Kan. 727, 60 Pac. 754, it was held:
“The real nature and object of an instrument of writing, which, on its face, appears doubtful or ambiguous in meaning, may be shown by evidence of the inducing causes to the making of it and of the facts and circumstances surrounding the transaction and involving the parties in their execution of the paper.” (Syl. If 1.)
In Evans v. McElfresh, 85 Kan. 389, 116 Pac. 612, it was said:
“Where a writing is incomplete and shows on its face that all the stipulations between the parties were not included in it, parol proof of the omitted parts of the contract which are not repugnant to or inconsistent with the written portions may be introduced to supplement that which is written.” (Syl.)
Where a written contract is, on its face, obviously incomplete, parol evidence may be received, not to contradict or vary its terms, but tó show the complete agreement of the parties. Following Shire v. Bank (ante, p. 690).
In Heskett v. Elevator Co., 81 Kan. 356, 105 Pac. 432, it was said:
"Parol proof cannot be received to enlarge, vary or contradict a complete written contract, but this rule is not applicable to a brief memorandum which, on its face, is obviously incomplete. As to such a writing, parol evidence may be received, not to contradict the writing, but to show the complete agreement of the parties of which the writing is only a part.” (Syl. H 1.)
The trial court found that both parties contemplated that the transfer should be completed on or before the first of October and that the nature of the property and the purposes for which it was being purchased were such that time of performance was, in fact, essential. At the time of entering into the contract it was the understanding of both parties that defendant desired the property for handling the grain business, and desired its use for the 1921 grain season; that the grain season in the Kinsley district was during the late summer and fall.
Both parties believed plaintiff had title to all of said real estate and that there would be no delay in closing the deal. It was a mutual mistake. It has been held that a bona fide mistake as to the ownership and .title of the subject matter of a contract will cause equity to refuse specifically to enforce it.-
In Hatch v. Kizer et al., 140 Ill. 583, 585; 33 A. S. R., 258, the court said:
“In the first place, the contract itself, together with the abstract referred to in it, shows that the agreement between the parties was entered into under a mutual misapprehension as to the title to said lots. It shows that both parties understood that the legal title was in Kizer. It is not claimed that such mistake was the result of fraud or misconduct on the part of Kizer. He furnished an abstract of the title in connection with the agreement, which showed that the legal title was in another, although he honestly believed it was in himself. As the title proved to be in a third party, Kizer could not perform the contract on his part, neither could he have required Chrisholm to do so. Whatever might have been the rights of the parties in an action for a breach of the contract, a court of equity would not, on the admitted facts, decree a specific performance of it. The rule is that such a decree will not be entered unless the agreement has been made with ‘perfect fairness, and without misapprehension, misrepresentation or oppression’; Frisby et al., v. Ballance et al., 4 Scam. 299 [39 Am. Dec. 409]; Bowman v. Cunningham, 78 Ill. 48. ‘To entitle a party to a decree for a performance of the agreement, it must be reasonable, fair and equitable. If wanting in any of these particulars, specific performance should never be granted, for. it is only on the principle that it is unjust and inequitable to permit the contract to remain unexecuted, that a court of chancery assumes jurisdiction to enforce it’: Tammer v. Lavelle, 92 Ill. 263; Woods v. Evans, 113 id. 186 [56 Am. Rep. 409].”
After making its findings, the trial court concluded, that, as “No sufficient title had been tendered during the time for performance, as contemplated by the parties, the defendant had a right to rescind.” The defect in plaintiff’s title was such that it was not in its power, by the ordinary course of law or equity, to make good title. Plaintiff could not compel the city of Kinsley to vacate the street. The fact that the city did vacate the street, after the expiration of the time for performance as contemplated by the parties, did not entitle the plaintiff to the relief sought.
There was disputed testimony as to whether defendant took possession of the property. The court found that, “The defendant, did not, at any time, enter into possession of said mill and elevator under said contract.” There was evidence to sustain the finding, and it will not be disturbed.
We deem it unnecessary to discuss the evidence in detail. It was sufficient to sustain the findings of the trial court. The defendant wanted- the property for use during the grain season. He did not desire to take possession unless plaintiff could deliver good title. He could not, on his part, have compelled the city to vacate the street, nor. could he have compelled specific performance of the contract. Whether specific performance will be decreed rests always in the sound judicial discretion of the trial court. In Shoop v. Burnside, 78 Kan. 871, 98 Pac. 202, it was said:
“Specific performance is not a matter of right but of equity. A contract to sell or purchase may be regularly made, yet specific performance will not follow as a matter of course. (Fowler v. Marshall, 29 Kan. 665; Bird v. Logan, 35 Kan. 228, 10 Pac. 564). The application is addressed to the sound legal discretion of the court, and courts will be governed by the facts and circumstances of each case (Reid v. Mix, 63 Kan. 745, 66 Pac. 1021, 56 L. R. A. 706; Viele v. Troy and Boston R. R. Co., 21 Barb. [N. Y.] 381). Although the proof might come far short of a showing sufficient to authorize the court to grant a rescission or cancellation of a contract,- still on the same proof equity will often refuse to compel performance.” (p. 875.)
The trial court made a specific finding to the effect that, “It would be inequitable to compel the defendant to take the property after the end of the grain season of 1921.” We see no sufficient reason to disturb it. Judgment affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The Peoples State Bank of Coffeyville was found to be insolvent about January 20, 1921, and a receiver was appointed to close up its business. About sixty days before insolvency the president of the bank induced Charles Secrest to subscribe for thirty-one shares of a contemplated increase in the capital stock of the bank and to deposit $3,875 in the bank, which it* was agreed should be used only in payment of the subscribed shares of stock when the same were authorized and issued to Secrest. The increase of capital stock had not been authorized nor had any stock been issued to Secrest when the bank became insolvent. When it was closed its liabilities amounted approximately to $600,000, and the available assets remaining were approximately $200,000. As against these assets there were special deposits or claims upon which preferences have been demanded, which amount to approximately $90,000. The special deposit was made by the transfer of certificates of deposit on other banks to the amount of $2,806.53 and by a check or receipt transferring to the Peoples State Bank a savings deposit of $1,068.47 which Secrest had in that bank. The trial court gave judgment for Secrest for the whole amount of $3,875, adjudging that $2,806.53 of the special deposit was a trust fund which should be paid in full, but that the $1,068.47 transferred from Secrest’s savings account was a common claim which was not entitled to priority. The receiver appeals from that part of the judgment making $2,806.53 of the deposit a preferred claim and Secrest appeals from •that part denying priority as to the $1,068.47 transferred from the savings account.
Was the special deposit made by the plaintiff in the bank a trust fund, and if it has the trust character can it be followed and payment required out of the assets of the bank in preference and before distribution to general creditors? There can b‘e no doubt of the fiduciary relation between the plaintiff and the bank. The fund was placed in the bank to be applied to a specified purpose for the benefit of plaintiff. It was not to go into a general account and had none of the characteristics of a general deposit. It was intrusted to the bank to be applied in payment of the shares of capital stock when the same was authorized and issued. The increase of stock was never authorized and no shares were issued or delivered to plaintiff before the failure of the bank. It is agreed that the fund was to be for no other than the specified purpose. The beneficial ownership of the fund remained in the plaintiff and the misapplication of it by the bank did not change its trust character. Can it be identified or traced to the assets of the insolvent bank which came into the possession of the receiver? He holds it by no better title than did the trustee, and he took the assets of the insolvent bank subject to any trust impressed upon them. Instead of holding the fund for the specified purpose and application, the bank converted and mingled it with its general funds, using it to honor checks, make loans, and as a part of its cash and sight exchange. The special deposit was made about two months before the bank was closed for insolvency and possession of its assets was taken by the bank commissioner. If the trust fund can be identified it may be followed through every mutation and subjected to the trust. The fact that it was mingled with the general deposits and used in the general'busi ness of the bank did not take away its trust character nor prevent the owner from reclaiming it if it can be traced into existing assets in the hands of the receiver. In the early case of Peak v. Ellicott, 30 Kan. 156, 1 Pac. 499, it was held that a trust fund placed in a bank which subsequently failed might be followed into the custody of the assignee and reclaimed out of the assigned estate. It was said:
“If a trust fund is mixed with, other funds, the person equitably entitled thereto may follow it, and has a charge on the whole fund for the amount due.” (p. 161.)
The theory was that as the fund never belonged to the bank, creditors were not injured if it was turned over by the assignee to its owner. Other cases of like import are:
Myers v. Board of Education, 51 Kan. 87, 32 Pac. 658; Hubbard v. Irrigating Co., 53 Kan. 637, 36 Pac. 1053, 37 Pac. 625; City of Larned v. Jordan, 55 Kan. 124, 39 Pac. 1030; Bank v. Bank, 62 Kan. 788, 64 Pac. 634; Reeves v. Pierce, 64 Kan. 502, 67 Pac. 1108; Clingman v. Hill, 104 Kan. 145, 178 Pac. 243.
As was held in Investment Co', v. Bank, 98 Kan. 412, 158 Pac. 68, the fact that the fund was fraudulently misappropriated by the bank does not of itself give an equitable right to reclaim it as against general creditors, but it was there said:
“If the money misappropriated reaches the hands of the custodian who administers the estate, in its original form or in any other — that is, if the assets in his hands are thereby increased by the amount fraudulently obtained — the fund can be restored to the lawful owner and no one will be any worse off than if the transaction never had occurred.” (p. 416.)
The fund is subject to identification and to be reclaimed if it can be traced into the existing assets which reached the hands of the receiver. As said in Bank v. Bank, supra:
“If the trust fund has been mingled with other assets of the trustee, and it appears that such assets have been thereby appreciably augmented and bettered, a trust will be impressed on such assets, and the cestui que trust will be entitled to have the trust fund reclaimed and taken out of the assets with which it is mingled.” (Syl. If 2.)
Here the funds were augmented and bettered to the extent of the amount of the fund misappropriated and used in the business of the bank. The assets which came into the hands of the receiver greatly exceeded the amount of the trust fund in question, and in fact of all the trust funds claimed. The right to follow and retake the proceeds of trust property ceases only when assets into which the fund has come have been expended so that no part of them can be traced to existing assets.
No reason is seen for disallowing a preference for the amount drawn out of the savings account by plaintiff and turned over to the bank as part of the special deposit. It was as effectually impressed with the trust as if plaintiff had drawn the cash from the bank and placed it with other moneys in the fund to be used for the specified purpose. (Tire & Rubber Co. v. Bank, 109 Kan. 772, 204 Pac. 992.)
The judgment is therefore modified with the direction that the entire amount, $3,875, be allowed and adjudged to be a preferred claim to be paid in full out of the assets in the hands of the receiver. | [
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The opinion of the court was delivered by
MaRshall, J.:
The plaintiff obtained a judgment against the defendants finding that a certain fence is the boundary line between the property owned by the plaintiff and that owned by the defendant, Eva Leigh, and enjoining the defendants from entering upon the premises belonging to the plaintiff. The defendants appeal.
The action was tried by the court, and special findings' of fact and conclusions of law were made. The dispute between the landowners, the plaintiff, and defendant Eva Leigh — defendant C. R. Schiele was a surveyor — arose over the line between their properties, defendant Leigh claiming that the line was seventeen inches south of the fence which divided their ground. Leigh owned property north of the line, and the plaintiff owned property south of the line.
The real estate involved is a part of Johnson’s Addition to the city of Fredonia in Wilson county. The addition, consisting of three and one-half blocks, was platted in 1872. In 1884, Isaac Hudson became the owner of block thirty-four, a half block at the west' end of the addition. He used the property for a cow pasture. The stakes or marks indicating the boundaries of the lots became obliterated. In 1907 he sold the property in controversy and other parts of the block. Some of those purchasing desired to know the location of the lots. Hudson caused a survey to be made, and wooden stakes were set at the corners of each lot. The lots were thirty feet wide. The descriptions in the deeds were according to the plat of Johnson’s Addition. The stakes were used to show the location of the properties. The lots sold were improved, and the improvements were located according to the stakes set by the survey that Hudson had caused to be made. Defendant Leigh acquired her property from her husband, who purchased it from Lawson D. Mikesell in 1919.
The twelfth, thirteenth, and fourteenth findings of fact were as follows:
“12. On or about the 22nd day of August, 1907, while Lawson D. Mikesell was the owner of lots 1 and 3 and the north five feet of lot 5 and Alice V. Mikesell, now Alice V. Shafer, was the owner of lots 5 and 7, except five feet oil the north side of lot 5 in said block 34, they, the said Lawson D. Mikesell and Alice V. Shafer, after viewing the stakes as located by the Kennedy survey, and measuring therefrom, marked the east and west ends of the boundary line between said lots 3 and 5, and a straight. line between the stakes was thereafter regarded as the boundary line between the properties of Lawson D. Mikesell and Alice V. Shafer; and on the 18th day of April, 1913, which was the date of the conveyance of said Alice Y. Mikesell to the said Lawson D. Mikesell of the north five feet of lot 5 in said block 34 the plaintiff, Alice V. Shafer, and said Lawson D. Mikesell orally agreed on the boundary line between the property then owned by said Lawson D. Mikesell, to wit, lots one and three and the north five feet of lot 5 in said,block 34, and the property owned by the plaintiff — lots 7 and all of lot 5 except the north five feet thereof. This line was measured in accordance with the Kennedy survey, and it was orally agreed between the parties at that time just where the line should be and a substantial fence was built on said line to mark the same. Said fence is still in existence and has been recognized as the boundary line between said properties continuously since said oral agreement was made. The said fence is substantial with vines growing thereon and may be readily observed by any one visiting the property. When F. D. Leigh and Eva Leigh- purchased said property they examined the same and observed the use and occupancy of said property between the then owners as to this fence being the boundary line between the 'said properties.
“13. The barn of the defendant at the northwest comer of lot 1 in said block 34 is on the line established by the Kennedy survey, and beginning at the stake set by the Kennedy survey at the northeast corner of said lot 1 measuring south to the line fence above referred to is a distance of 65 feet, which gives, according to that measurement and according to the Kennedy survey the defendant’s full lots 1 and 3 and five feet off of the north side of lot 5, and all of the property in block 34 has been improved and the lines located according to this survey, and the changing of the north line of defendant’s property would result in a change of all of the lines in said block 34 for the very reason that said properties have been improved in conformity with said survey.
“14. On, or about the 28th day of July, 1920, the defendant employed C. R. Schiek, City engineer of Fredonia, Kansas, to re-survey her property in said block 34 and re-locate the boundary line between the properties of the plaintiff and defendant, and the defendant, the said C. R. Schiek, as said city engineer, and C. P. Donald, County Engineer, went upon said property to survey the same. No notice was ever served upon the plaintiff as to the making of this survey. The defendant claims and contends that the line fence above referred to is not the true boundary line between the said properties, but that the true boundary line is about seventeen inches south of said boundary line or fence which was agreed upon between the plaintiff and the said Lawson D. Mikesell as the boundary line.”
1. The defendants contend that the thirteenth and fourteenth findings of fact were not supported by evidence. An examination of these findings reveals that the facts therein stated are almost wholly of an evidentiary nature. These findings are summaries or recapitulations of the evidence concerning those facts. Those facts were testified to by witnesses, but the language used in the findings is that of the court, not of the witnesses. In More v. Burroughs, 111 Kan. 28, 205 Pac. 1029, this ‘court said:
“Findings of fact which are a correct recapitulation of the evidence cannot be said to be in conflict with the evidence or to be unsupported thereby.” (Syl. If 1.)
That declaration^ approved and disposes of this proposition.
2. It is contended by the defendants that the court erred in its conclusions of law. The conclusions of law were as follows:
“1. That the boundary line between the property now owned by the plaintiff, to wit, lot seven and the south twenty-five feet of lot five, in block 34, Johnson’s addition to the City of Fredonia, Kansas, and the property owned by the defendant, Eva Leigh, in block 34, in Johnson’s addition to the City of Fredonia, Kansas, is where the fence erected by the plaintiff and the said Lawson D. Mikesell, as found in finding number 12 of the findings submitted herewith.
not be changed by any survey that might be made of said properties for that purpose and the plaintiff is entitled to the injunction prayed for in her petition.”
The defendants support their contention by arguing that the descriptions in the deeds are conclusive, notwithstanding the survey that was made when Hudson sold the properties, notwithstanding the understanding of the purchasers, and notwithstanding the making of improvements in accordance with that survey and understanding. The contention of the defendants is not good. The location of the lots in this block was unknown when Hudson sold to the various purchasers. It was entirely proper for him to mark the corners to,the lots and for the purchasers to. buy according to those marks and for the purchasers to agree that the lines should be as indicated by the marks.
In Sheldon v. Atkinson, 38 Kan. 14, 16 Pac. 68, it was held that—
“If a corner and a division line are established by a parol agreement between two proprietors of adjoining lands, and such corner and division line are acted upon and acquiesced in for a period of time equal to.the statute of limitations, such corner and division line are binding and conclusive on the parties and those claiming under them.” (Syl.)
In Steinhilber v. Holmes, 68 Kan. 607, 75 Pac. 1019, it was held that—
“Where parties by mutual agreement fix boundary lines and thereafter acquiesce in the lines so agreed upon, they must be considered as the true boundary lines between them, even though the period of acquiescence falls short of the time fixed by statute for gaining title by adverse possession.
may, by parol agreement, settle and permanently establish a boundary line between their lands, which, when followed by possession according to the line so agreed upon, will be binding upon the parties and their grantees. Such an agreement, followed by possession, is not obnoxious to the statute of frauds.” (Syl.)
Support for this rule can be found in Parks v. Baker, 81 Kan. 351, 105 Pac. 439; Edwards v. Fleming, 83 Kan. 653, 112 Pac. 836; Kastner v. Baker, 92 Kan. 26, 28, 139 Pac. 1189; Dean v. Evans, 106 Kan. 389, 188 Pac. 436.
Why is it inequitable? The defendant has the full amount of land conveyed to her. The lines are as indicated when the Leighs acquired the property. The lines to the property were adjusted be fore the Leighs bought it. It would be inequitable to permit those lines to be disturbed at this time.
4. On the oral argument in this court, it was "contended that title to the property cannot be determined in an injunction action. This question is not argued in the briefs. The plaintiff’s petition alleged title to the property and interference with the possession thereof by the defendants, and asked for an injunction. The answer contained a general demurrer, alleged title in Eva Leigh, prayed that she be declared the owner of the property, and asked for damages. The demurrer does not appear to have been passed on. The action was tried by the court. It is not shown that a jury was requested by either side. It does appear that the action was tried as one to determine the title to the property. It does not appear that any objection was made to the form of the action, nor that this question was called to the attention of the trial court. Under these circumstances, the judgment should not be reversed, even if injunction is not a strictly proper form of action in which to try title to real property. Parties can try title in such an action if they want to do so.
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The opinion of the court was delivered by
Burch, J.:
The district court allowed a landowner the full period of eighteen months in which to redeem from a foreclosure sale. A mortgagee, and the purchaser at the sale, who claim six months only should have been allowed, appeal.
Swart traded a section of land in Leavenworth county to Kelsey for two flats in Kansas City, Mo. The flats were encumbered by mortgages amounting to $20,000, which Swart assumed. The section was encumbered by mortgages as follows;
Bankers Life Insurance Company. $24,000
McCorkle . 17,000
McCorkle .>. 1,200
Robertson. 5,000
Total.!.... $47,200
Kelsey assumed these mortgages, and in addition gave Swart a mortgage for approximately $4,000. The exact amount of this mort gage was $3,946.22, and it was assigned by Swart to Myers. Robertson foreclosed subject to the mortgages to the life insurance company and McCorkle. Myers was made a party, and foreclosed subject to all prior liens. The Meyers judgment amounted to $4,-661.65. The Robertson judgment was paid, and the sum of $1,000 was paid on the Myers judgment. The land was sold subject to the life insurance company and McCorkle liens, and Myers moved to confirm. His motion contained the following:
“Defendant further shows to the court that the judgment upon which this sale was ordered wa§ a judgment rendered upon a purchase-money mortgage, being a mortgage given for the purchase price of the real property described herein, and that less than one-third of the purchase price of said property had been paid.”
The motion concluded with a prayer that the redemption period be fixed at six months from date of sale, which was denied.
The market value of the section was $90 per acre, or $57,600. The market value of the fiats was $24,000. There was evidence that in the negotiations the fiats were priced at $55,000, and the land at $80,000. The contract of sale gave the consideration as mutual agreement of the parties, and the deed of the section recited a consideration of a dollar and other valuable considerations.
Section 503 of the civil code, relating to foreclosure of purchase-money liens, provides that, if default be made before one-third of the purchase price of land has been paid, redemption must be made within six months from date of sale. Section 476 provides that, if the land be abandoned, or be not occupied in good faith, the owner shall be given but six months in which to redeem. The manifest purpose of these provisions was to prevent abuse of the redemption privilege, which in proper cases is exercisable within eighteen months from date of sale. The question here is whether it would be an abuse of the redemption act to compel a purchase-money lien holder to submit to a redemption period of eighteen months, merely because traders chose to assign fabulous prices to their real estate.
It is proposed that an equity of $4,000 in the Kansas City flats shall be considered as paying $35,000 of the price of a farm in fact worth $57,600, but priced at the extravagant sum of $80,000. That the prices assigned were not genuine, but were artificially adjusted and purely fictitious, is plain. By pricing the farm at $80,000, subject to mortgages for $45,000, the equity would amount to $35,000. To make the trade even, the flats were priced at $55,000, subject to mortgages for $20,000. It so happened, however, that the land was mortgaged for $47,200 and, in order to make the trade satisfactory, it was necessary for Kelsey to give Swart another mortgage for $4,000. All the while the farm was worth only $57,600, the flats were worth but $24,000, and the net result was, an equity of $4,000 in the flats was traded for the equity of $6,400 in the farm. Under these circumstances, the trading prices must be disregarded.
The purchase price of the farm was the amount of the mortgages assumed and given, $51,200, and the flats, less mortgages of $20,000 assumed. On the farm mortgages assumed and given, the purchaser has paid $6,000. No value which in reason and conscience may be assigned to the equity in the flats, will bring the amount paid by Kelsey up to one-third of the purchase price of the farm, and the redemption period should have been fixed accordingly.
The judgment of the district court is reversed, and'it is ordered and adjudged by this court that, unless redemption be made on or before February 1, 1923, the sheriff execute a deed to the purchaser. Mandate to the district court will issue at once. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued on a promissory note given by the defendants to J. Crouch & Son for a stallion purchased from them to be used for breeding purposes. The defendants pleaded that the consideration for the note had failed; that the plaintiff had knowledge of that fact; that the plaintiff had not purchased the note prior to its maturity for a valuable consideration; and that the plaintiff was holding the note and suing on it for the accomodation of J. Crouch & Son. The note contained the following condition: “The drawers and endorsers consent that time of payment may be extended without notice thereof.”
Judgment was rendered in favor of the defendants, and the plaintiff appeals.
1. The plaintiff in its brief says, “The first proposition we wish to discuss is, whether the appellant is a bona fide purchaser of the note in due course.” There was evidence which tended to prove that the plaintiff acquired the note in good faith for value before maturity without notice of any infirmity in it, but there was also evidence which tended to prove that the plaintiff was not the holder of the note and that J. Crouch & Son were the owners and holders thereof. The cashier of the bank in Garden City, to which the note was sent for collection, testified that the note was sent to the bank by J. Crouch & Son about the time it matured and that the bank kept the note until after its maturity. One of the defendants testified that he had received correspondence from J. Crouch & Son concerning the payment of the note about the time it was due. On the evidence, the case was submitted to the jury, and a general verdict was returned in favor of the defendant. It is presumed that the jury was correctly instructed. Under these circumstances, there is nothing to do but uphold the verdict and judgment on the ground that the plaintiff was not the owner and holder of the note.
2. Another contention of the plaintiff is that even if the answer of the defendants was supported by evidence, the note was not open to the defense of failure of consideration because there was no fraud pleaded. This contention is not good. The note was not negotiable. In Bank v. Heslet, 84 Kan. 315, 113 Pac. 1052, this court held nonnegotiable a note which contained the following condition:
‘‘The makers and indorsers of this note hereby severally waive presentment for payment, notice of payment, protest and notice of protest, and all exemption that may be allowed by law, and valuation and appraisement laws waived, and each signer and indorser makes the other an agent to extend the time of this note.” (p. 315.)
(See, also, Bank v. Gunter, 67 Kan. 227, 72 Pac. 842; Delaney v. Implement Co., 79 Kan. 126, 131, 98 Pac. 781; Sykes v. Bank, 78 Kan. 688, 98 Pac. 206.)
In Bank v. Dickinson, 102 Kan. 564, 171 Pac. 636, this court said:
“A note signed by five joint makers contained this language: ‘We, the makers, sureties, endorsers and guarantors of this note, hereby severally waive presentment for payment, notice of nonpayment, protest and notice of protest and consent that time of payment may be extended without notice thereof to any of the sureties of this note.’ Held, That such note is negotiable.” (Syl. ¶[ 2.)
In that case, there were no sureties on the note and that fact entered largely into the decision. The stipulation in the present note that time of payment may be extended without notice, made the time of payment indefinite. It was not payable at a “fixed or determinable future time,” as required by statute. (Gen. Stat. 1915, § 6528.)
The defendants are relying on a warranty given by J. Crouch & Son. There was evidence which tended to prove that when the stallion was purchased, the representative of J. Crouch & Son stated to the defendants that the stallion was a “sure foal.” There was evidence which tended to show that the horse was not a “sure foal” getter and that he was unfit for breeding purposes. The note'being nonnegotiable, that evidence warranted the court-in submitting to the jury the question of warranty, and in instructing the jury that, if a warranty were found, a verdict should be returned in favor of the defendants.
No error appears, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
This is a compensation case. The plaintiff, while in the employ of the defendant, had his right hand caught in a valve gear, resulting in the loss of three of his fingers, which were cut off below the second joint; the index finger was made stiff and his hand was otherwise injured so as to render it permanently useless. He alleged in his petition that he made claim upon the defendant for compensation and that an attempted settlement was made by which he was paid the sum of $350; that he accepted the sum because of the defendant’s promises to furnish him a lifetime job or position, but that defendant did not reemploy him or furnish him a place to work, and that the sum paid was wholly inadequate to compensate him for his injuries. He alleged that the defendant by its agents obtained his signature to a written settlement or release by fraud, the representation being that it would not be necessary to insert in the release any consideration other than the amount of money they were paying him, and that because of his crippled condition they could not tell him just what work he could perform and for that reason it was not necessary to insert in the release a condition as to his employment. He asked for judgment for the amount allowed under the compensation law and offered to credit the $350 received.
After plaintiff’s counsel had made his opening statement to the jury, the defendant moved for judgment on the ground that the statement showed that there was no fraud or misrepresentation which would in law authorize the- setting aside of the release. Before the court ruled upon the defendant’s motion, plaintiff, over ob jections, obtained leave and amended his petition by alleging that the defendant’s agent who obtained the release informed him that $350 was all he could get under the compensation act; that plaintiff believed the statement, relied thereon and accepted the $350. Counsel then made a further opening statement to the jury setting forth the facts alleged in the amendment. The facts set forth in the amendment were testified to by the plaintiff on the trial. There was a verdict in favor of plaintiff for $1,800, after crediting the $350 received in the attempted settlement.
The sole question urged by the defendant is that a misrepresentation as to a matter of law is not a sufficient basis upon which to predicate fraud. The defendant relies upon decisions holding that the workmen’s compensation act and amendments thereto recognize the legality of voluntary settlements and releases of a workman’s claim for injuries, and that, in the absence of fraud or a mutual mistake, the release of such a claim upon a voluntary settlement will not be set aside on the ground of gross inadequacy of compensation. (Odrowski v. Swift & Co., 99 Kan. 163, 162 Pac. 268; Weathers v. Bridge Co., 99 Kan. 632, 162 Pac. 957; Dotson v. Manufacturing Co., 102 Kan. 248, 169 Pac. 1136.) It is insisted, therefore, that the sole question is, Did the statement made by the defendant’s agent to the plaintiff constitute such fraud as will invalidate the release? The defendant cites numerous authorities in support of the well-established proposition that ordinarily the rule is that a settlement will not be set aside 'because one of the parties did-not understand its legal effect. The rule rests upon the fundamental assumption that persons of sound and mature mind are presumed to know the law. (2 Pomeroy’s Equity Jurisprudence [3d ed.] § 842.) The defendant relies also upon the general rule that where there is no relation of confidence and trust such as imposes an obligation upon one of the parties to give full information to the other, “the latter cannot proceed blindly, omitting all inquiry and examination, and then complain that the other did not volunteer to give the information which he had.” (12 C. J. 353.)
It is the contention that the only exception to the general rule is where there exists some relation of confidence or trust between the parties which imposes an obligation upon the one not to take advantage of the other and to give to the other full information. We think there are other exceptions to the general rule. In Epp v. Hinton, 91 Kan. 513, 138 Pac. 576, where the well-known rule was recognized, that false representations with respect to the law of another state may be the basis of an action for damages on the ground of fraud, it was said in the opinion:
“The modern tendency' — a wholesome one — is to restrict rather than extend the immunity of one who gains an advantage over another by purposely misleading him.” (p. 515.)
In the notes to 26 C. J. 1207, 1208, cases are cited to the effect that misrepresentations of law are grounds for redress in particular cases or with reference to particular transactions. The particular transactions and cases are referred to again in the notes to 12 C. J. 353, under the title, “Compromise and Settlements.” Among the exceptions recognized by Corpus Juris is a mistake of law where the opposite party was in some way instrumental in producing the result, and cases are cited holding that it is well settled that relief will be granted against a compromise “not made merely under the impression that the law is doubtful and uncertain, with a view of bringing peace, but made under an entire and thorough mistake of law, as for instance, where the agreement is made in ignorance of the existence of a right or title, for in such case the mistake may be deemed a mistake of fact as well as of law.” (12 C. J. 352.) Other exceptions are that “under some circumstances, as where the party relies upon the superior knowledge of the opposite party, a false representation as to a matter of law may constitute fraud.” (12 C. J. 349; see, also, “Contracts,” 9 Cyc. 410; “Fraud,” 20 Cyc. 24.)
In Titus v. Rochester, etc., Ins. Co., 97 Ky. 567, 53 Am. St. Rep. 426, 427, 430, it was said:
“These charges being admitted, it seems to us that the case presented involves something more than an effort to obtain relief purely on the ground of a mistake of law, or mere ignorance on part of appellant as to his legal rights under the contract of insurance. It becomes, in addition to this, a case of actual fraud, where by fraudulent misrepresentations made for the purpose and with the intent to deceive, the known ignorance of one of the parties to the contract has been willfully taken advantage of, and he has thereby been induced to surrender a valid, subsisting right without consideration. It is true that the ignorance relied upon is an ignorance of law rather than of fact, and that this is not always, or perhaps generally, and when standing alone, available as a ground of relief against an executed contract, no matter how inequitable it may be. On this point the decisions of the courts of this country, as well as the English courts, are by no means uniform, but, in our opinion, the weight of authority and the decisions of this court would now forbid that a party, who, with full knowledge of the ignorance of the other contracting party, has not only encouraged that ignorance, and made it the more dense by his own false and fraudulent misrepresentations, but has willfully deceived and led that other into a mistaken conception of his legal rights, should shield himself behind the general doctrine that a mere mistake of law affords no' ground for relief.
“This view seems to be upheld by many, if not all, of the modern text-writers who are recognized as authority on the question.
“Mr. Kerr, in his well-known work, in treating this subject said: ‘But if it appear that the mistake was induced or encouraged by the misrepresentation of the other party to the transaction, or was perceived by him and taken advantage of, the court will be more disposed to grant relief than in cases where it does not appeaii-that he was aware of the mistake.’ Kerr on Fraud and Mistake, 399, 400.
“And in his work on Equity, Mr. Bispham lays down this doctrine, in even stronger and less uncertain terms. He says: ‘Where ignorance of the law exists on one side, and that ignorance is known and taken advantage of by the other party, the former will be relieved. More particularly will this be so if the mistake was encouraged or induced by misrepresentations of the other party.’ Bispham’s Principles of Equity, sec. 188.
“In an exhaustive opinion in which the authorities were ably reviewed by Judge Robertson, after referring to the difficulty of determining, in every case, when a contract was, in fact,- made under a mistake of law, it is said: ‘When it can be made perfectly evident, that the only consideration of a contract was a mistake: as to the legal rights or obligations of the parties, and when there has been no fair compromise of bona fide and doubtful claims, we do not doubt that the agreement might be avoided on the ground of a clear mistake of law, and a total want, therefore, of consideration or mutuality’: Underwood v. Brockman, 4 Dana, 309, 29 Am. Dec. 407.
“In the case of Ray v. Bank of Kentucky, 3 B. Mon. 510, 39 Am. Dec. 479, this court referred to and approved the above case and said: ‘Upon the whole we would remark that, whenever, by a clear and palpable mistake, of law or fact essentially bearing upon and affecting the contract, money has been paid without cause or consideration, .which in law, honor, or conscience was not due and payable, and which in honor or good conscience ought not to be retained, it was and ought to be recovered back.’
“Both of these cases are cited with approval in the case of Louisville, etc., R. R. Co. v. Hopkins County, 87 Ky. 613, and the doctrine laid down therein has not been departed from by this court.”
In 26 C. J. 1208 it is said:
“But misrepresentations involving a point of law will be held actionable misrepresentations of fact if it appears that they were so intended and understood, as where they amounted to an implied assertion that facts existed which justified the conclusion of law expressed, and where in addition to misrepresentations of law there were also actionable misrepresentations of fact, or a promise made without intention to perform.”
Representations as to the validity of liens is a question of law, but representations as to priority of liens has been held actionable mis representations of fact. (Kehl v. Abram, 210 Ill. 218, 102 Am. St. Rep. 158; Bristol v. Braidwood, 28 Mich. 191, and see, 26 C. J. 1208, 1209.)
The statute fixes a schedule for the injuries sustained by the plaintiff. Where a mathematical computation has to be made to ascertain the amount of liability under the act, the result of such computation constitutes a matter of fact, rather than a matter of law. There ought"to be a presumption, we think, that where an employer of many workmen like the defendant places the adjustment and settlement of claims under the compensation law in the hands of an agent, it selects a person who is familiar with the’provisions of the compensation act. The great disparity between the amount paid, $350, and $2,150, to which he was entitled under the compensation act for the particular injury which plaintiff sustained, must be taken into consideration. The amount of compensation he was entitled to was not purely a question of law. It was to some extent a question of fact. There was no misunderstanding as to the extent of his injuries. He had lost three fingers of his right hand and the index finger was rendered useless. The compensation act fixes a schedule for injuries of this character and the amount of compensation is certain. The petition alleged and the proof showed that the agent and employee of the defendant told the plaintiff that the company would pay him the amount he was entitled to recover under the compensation law, which was $350.
Moreover, the workmen’s compensation act was not passed for the benefit alone of the injured employee and the employer. It is well understood that there were supposed to be three parties interested: the employer, the employee and the public, and that a broad public policy moved the legislature to enact the measure because of the waste of life and limb in industrial accidents, and because” the public, in the end, paid for the financial loss in the increased price of the product. (McRoberts v. Zinc Co., 93 Kan. 364, 367, 144 Pac. 247; Menke v. Hauber, 99 Kan. 171, 173, 160 Pac. 1017.)
The act provides for and encourages settlement without resort to litigation or even to arbitration and compels the parties to consent to arbitration where one or the other demands it. (Goodwin v. Packing Co., 104 Kan. 747, 180 Pac. 809; Roper v. Hammer, 106 Kan. 374, 378, 187 Pac. 858.) In Goodwin v. Packing Co., supra, it was held that the act contemplates that compensation shall be settled by agreement or by arbitration, and without litigation.
True, the law does not compel the injured workman to demand compensation nor require the employer to pay without demand. But it contemplates that where demand has been made and the injury falls within the schedule fixed by the statute, the employer becomes liable for the amount of a fixed sum as compensation. To order this judgment reversed because the amount of compensation to which the plaintiff was entitled is fixed by a statute and therefore became, in a sense, a question of law, would open the door to fraud in the settlement of meritorious claims under the compensation act for grossly inadequate sums, the settlement being obtained by willful misrepresentation of the amount to which an injured workman was entitled. In all large plants like that of the defendant there are many workmen who are ignorant of their rights and liable to accept any representation of the employer with respect to their rights under the compensation act. We must assume from the record that the defendant’s agent, knowing the extent of the plaintiff’s injuries and the amount provided for in the compensation act, intentionally misrepresented to the plaintiff the amount he was entitled to recover, and that.the settlement was agreed to because plaintiff was ignorant of the amount. We then have a case in which there was no doubt concerning the justice of the claim and the amount was fixed by statute. Public policy should, and we think does, prevent such an injustice.
It follows from what has been said that the judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action on the bond of a justice of the peace and his sureties.
The circumstances were these: One W. B. Wilson filed his bill of particulars before C. J. Jukes, a justice of the peace, against one J. A. Jackson, and an attachment was issued on certain goods of Jackson in the possession of Otto Smith and wife. About the same time one W. C. Goodell filed his bill of particulars before the same justice against the same Jackson, and a similar attachment was issued on the goods of Jackson in possession of Smith and wife. The attached goods were the food supplies of a restaurant, and when the sheriff, as special constable, served the attachments, he made an arrangement with Smith’s wife whereby she was to use the perishable foods and replace them when, and if, they would have to be forthcoming pursuant to the attachments. Jackson could not be found in the county and was served by publication, and although the actions of Wilson and Goodell were set for-hearing on July 3, yet default judgments were entered against Jackson on July 1, and the attachments were sustained and the attached property ordered sold. On July 24, Otto Smith filed inter-pleas in the Wilson and Goodell cases, alleging that the attached goods were part of the assets of a restaurant which he had sold to Jackson and that Jackson had surrendered them to him on April 23, and that there was a balance of $180 due him thereon and that his possession gave him a prior lien over the attachments, and he prayed “that the attachments herein be dissolved and that this interpleader’s claim for prior lien thereto be upheld and be declared to be a first and prior lien thereon.” Wilson’s and Goodell’s demurrers to these interpleas were sustained by the justice. The defendant, however, in open court said he was ready to comply with the agreement between his wife and the special constable, and would pay for the goods. Thereupon Wilson a-nd Goodell asked and obtained leave to file answers to the interpleas, denying the allegations of Smith’s prior right and asking judgment for the value of the goods used by Smith and wife. While these answers were being prepared, Smith, on the suggestion of his lawyer, withdrew from the court. One witness testified:
“At a hearing Mr. Smith was willing to pay for the goods, but Mr. Bryant, his attorney, was not. At the time permission was asked to file the answer and interpleas Mr. Bryant and Mr. Smith were present.”
Another witness testified:
“Mr. Smith said that he had used the goods and that he was willing to do whatever was right. About that time his lawyer took him by the coat tail, 1 guess, at least he shut up.”
The sheriff testified:
“The day before the sale, I went to Mr. Smith, and I said: ‘Tomorrow is the day we have the sale.’ He said: ‘Well, I have already used the stuff, I will just come up tomorrow and pay you for it.’
“At the trial Mr. Smith said that he was still ready to carry out his agreement, and his attorney spoke up and said they would do nothing of the kind.”
Judgments aggregating $292.94 and costs were entered in behalf of Wilson and Goodell against Otto Smith, and thereafter this sum was collected by garnishment proceedings on funds of Smith in a Coffeyville bank. While the garnishment proceedings were pending, Smith filed a motion to dismiss on the ground that the Wilson and Goodell judgments against him were void — because the judgments against Jackson had been prematurely entered on July 1 when the causes had been set for July 3, and because no bills of particulars had been filed against him (Smith) and no summons had been served on him, and because the court’s rulings sustaining the demurrers to his interpleas had terminated the cases so far as concerned Smith.
No appeals were taken from any of the proceedings had before the justice of the peace. On the contrary, this action in the district court on the justice’s bond was begun to recover the money paid into the justice court by the Coffeyville bank under the garnishment proceedings. All the antecedent matters narrated above were pleaded or developed by the evidence. The trial court gave judgment for plaintiff for $55.23, which was found to be the excess in the hands of the justice over the amount of the judgments against plaintiff in favor of Wilson and Goodell.
Plaintiff appeals. He first argues that the judgments in' favor of Wilson and Goodell against Jackson were void because they were entered on July 1 when the causes had been set for July 3. But where jurisdiction has once attached, as it had in these cases, the premature entering of the judgments only rendered them irregular and voidable, but not void. (Mitchell v. Aten, 37 Kan. 33, 35, 14 Pac. 497.)
Plaintiff further contends that the justice had no jurisdiction to render any judgment against him except for costs. Without conceding that this contention might be correct in some situations, it is to be noted that in his interpleas he prayed for affirmative relief against Wilson and Goodell. The effect of that was a general appearance (Meador v. Manlove, 97, Kan. 706, 710, 156, Pac. 731; Mfg. Co. v. Hayes, 97 Kan. 740, 742, 156 Pac. 735; Makemson v. Edwards, 101 Kan. 269, 166 Pac. 508) and therefore no summons to bring plaintiff into court was necessary. Nor did the hasty withdrawal of plaintiff and his counsel from the court room before answers by Wilson and Goodell to his interpleas were reduced to writing avail to defeat the jurisdiction. In a justice’s court written pleadings are not necessary (Blair v. McQuary, 100 Kan. 206, 162 Pac. 1173), and judgment might properly have been entered against plaintiff on his own admission of his liability. Moreover, the order of the justice granting leave to Wilson and Goodell to file answers to plaintiff’s interpleas was in effect a setting aside of his ruling On their demurrers, and this left the matter open for whatever judgments justice might require. The demurrers were probably .erroneously sustained in the first place, for it would seem that plaintiff’s interpleas were perfectly good against demurrers, and the plaintiff had a right to appeal therefrom. So, too, might the plaintiff have appealed from the ruling on the motion to quash the garnishment summons and the subsequent proceedings therein.
From the foregoing it is clear that whatever -questionable orders and judgments the justice may have made, he had full jurisdiction of the parties and of the subject matter, and it is fundamental in all such cases that for errors in judgment a justice of the peace, as a judicial officer, is not liable. In Clark v. Spicer, 6 Kan. 440, 446, this court said:
“It is a general principle of law that whenever a judicial officer acts within the scope of his jurisdiction, he is not liable, however erroneous his acts may be. 1 Chit. PI. 78, and the numerous cases there cited. Any other rule would be attended with the most disastrous consequences. ‘Whenever we subject the established courts of the land to the degredation of private prosecution, we subdue their independence and destroy their authority. Instead of being venerable before the public, they become contemptible; and we thereby embolden the licentious to trample- upon, everything sacred in society, and to overturn those institutions which have hitherto been deemed the best guardians of civil liberty’- — Kent, C. J., in Gates v. Lansing, 5 Johns, 298. And who would accept a judicial office were he liable to be arraigned for every error of judgment, and his property wasted in litigation, with every man whom his decisions might offend?”
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The action was in the nature of a creditor’s bill. There was a judgment for the defendant, and the plaintiff appeals.
that the defendant, Asa Tomlinson, was indebted to the plaintiff, the Lebanon State Bank, in January, 1920, in the sum of about $8,000, and owed large sums to other creditors; that he was at that time the owner of a quarter section of land in Smith county and a residence and six lots in the city of Lebanon; that while so indebted he conveyed all this real estate to Rettie Tomlinson, his wife, without consideration and to defraud his creditors; that plaintiff brought suit against him on his note and attached the lands as his property, obtained judgment and an order for the sale of the lands, and was entitled to have the fraudulent transfer to Rettie Tomlinson set aside. The wife filed an answer in which she admitted the execution of the deed, denied that it was voluntary and without consideration, or that it was done to hinder or defraud creditors, and alleged that it was made for a valuable and adequate consideration in payment of money she had loaned to her husband.
The court made findings which, briefly summarized, are:
Asa Tomlinson and Rettie Tomlinson were married in 1900, since which time they have lived in the vicinity of Lebanon. In 1902 Mrs. Tomlinson received from the estate of her father $522.22, which she loaned to her husband and which he used in the purchase of live stock. At various times Rettie Tomlinson received money from the estate of her mother, including advancements made by her mother during her lifetime, amounting to $4,368.98. In the year 1913 she began keeping an account at the plaintiff bank, and deposited up to and including November 4, 1916, $3,225.13. She made loans to her husband' at various times, -and with the understanding that he was to pay her the same interest he paid to the bank when he borrowed money. The total indebtedness of the husband to the wife at the time the deed in question was executed was a little in excess of 18,000. In 1916, and for several years prior thereto, Asa Tomlinson owned the west half of a section of farming land adjoining the city of Lebanon, and'in that year he sold the south quarter, on which were practically all the improvements, for $16,000. Before his wife consented to sign the deed she demanded, and he promised, that he would convey to her the other quarter, and with that understanding she signed the deed. There was an incumbrance of $8,000 on the south quarter, and out of the proceeds of that sale Asa Tomlinson paid the plaintiff $6,054.55 upon obligations then held by the bank against him. In January, 1920, Mrs. Tomlinson informed her husband that she wanted either all the money he owed her or a deed to the north quarter, and her husband replied that she would get it. The reasonable market value of the north quarter, when it was conveyed to the wife, was $12,000, but the land was subject to a mortgage of $4,000. The reasonable market value of the homestead, which included the six lots in the city of Lebanon, was $2,500, subject to a mortgage of $400. When Asa Tomlinson executed the deed in question to his wife he. did not have property enough, aside from that described in the deed, to pay his existing obligations. On January 12, 1920, Asa Tomlinson conveyed by warranty deed to Rettie Tomlinson, the consideration designated being one dollar and other valuable considerations, the north quarter of the land; and also a tract of land consisting of one and a fraction acres in the city of Lebanon, the homestead of Asa and Rettie Tomlinson. The deed was delivered to Rettie Tomlin-son and she recorded it on the 16th day of September, 1920. The plaintiff knew that Rettie Tomlinson had furnished her husband several thousand dollars for use in his business of buying and selling live stock. The deed' to Rettie Tomlinson was not made to defraud or hinder creditors, but in consideration of money borrowed by the husband from her, including the accrued interest thereon, and the deed was executed for an adequate and valuable consideration. When the bank extended credit to Asa Tomlinson it believed that he was the owner of the land afterwards deeded to his wife.
As a conclusion of law the court held that the deed to the wife was a valid conveyance.
It is contended that the court erred in finding that at various times Rettie Tomlinson received money from the estate of her father and from her mother, including advancements by her mother during her lifetime, amounting to $4,368.98. This is based in part on the contention that the court erroneously admitted in evidence a number of checks payable direct to Asa Tomlinson which were made by Sophie Jane Bonnett, mother of Rettie Tomlinson. It is insisted that for all that appears in the evidence these were either gifts or loans to Asa Tomlinson from his mother-in-law. Henry'J. Bonnett, a brother of Mrs. Tomlinson, testified that he knew the reason certain checks were made to Asa Tomlinson, which was that Mrs. Tom-linson could not be present at the time, and she gave instructions to have them made to her husband. Besides, there was testimony to the effect that Asa Tomlinson never regarded himself as indebted to his mother-in-law or to her estate. We think that after the course of dealing between the husband and wife had been shown, covering a period of years, in which she turned over to him moneys received from her father’s estate and from her mother and from her mother’s estate, the court was justified in assuming that the checks made payable directly to Asa Tomlinson were intended as loans from his wife. We must, therefore, accept the correctness of the court’s findings and that Rettie Tomlinson loaned her husband at different times money which amounted, with interest, to $8,087.06 at the time the deed was executed, and that the deed was made for a valuable consideration.
The main contention of plaintiff is that the court should have required Mrs. Tomlinson to first credit upon her husband’s indebtedness the $2,100 found to be the value of the homestead and which was conveyed to her by the same instrument. Mrs. Tomlinson claims that the unexempt quarter section was- conveyed to her in consideration of loans she had made to her husband, and that the homestead was conveyed to her as a gift. There was no claim in her answer to that effect. It was merely alleged that the conveyance was given for a good and valuable consideration for loans made by her to Asa Tomlinson. Near the close .of the trial Mrs. Tomlin-son was recalled and testified that the conveyance of the homestead was a gift; her husband testified that that was his intention and said that he told the scrivener to include the homestead in the deed because he wanted to make a gift of it to his wife. The defendant requested the court to find that the conveyance was a gift as to the homestead, but the court refused to make That finding. The plaintiff insists that the refusal to make that finding amounts to a find ing to the contrary. We do not believe that it does. The court may have regarded the requested finding as not material; or may have been unable to determine from the evidence whether or not it was a gift. Evidently the court proceeded upon the theory that the plaintiff could not, in any event, look to the homestead or any of the proceeds thereof in satisfaction of its claim. (Scott v. Rodgers, 97 Kan. 438, 439, 155 Pac. 961, and cases cited in the opinion.) “A debtor may convey the homestead with or without consideration, and the creditor cannot complain.” (p. 440; see, also, Hixon v. George, 18 Kan. 253, 260.) The plaintiff concedes that this doctrine is thoroughly embedded in the Kansas law, but relies upon the rule that a creditor may not take property in payment which is appreciably greater in value than the amount of the debt. (Farlin v. Sook, 30 Kan. 401, 1 Pac. 123; Bank v. Pirotte, 107 Kan. 573, 193 Pac. 327.) It is true that a court of equity, being more flexible than a court of law, sometimes in suspicious cases where it is unable to detect actual fraud on the part of the vendee, adopts,a medial course, and without setting aside the conveyance permits it to stand as a security'for the satisfaction of the debt actually due the vendee, and avoids the deed as to the excess upon the theory that as to any appreciable excess in the satisfaction there is constructive, though not actual, fraud. (See Boyd v. Dunlap, 1 Johns Ch. [N. Y.] 478, and Griswold v. Szwanek, and note to same case, 21 L. R. A., n. s., 222, 225.) Plaintiff’s contention in this respect is that the entire conveyance was made to the wife in consideration of the $8,000 owing to her by Asa Tomlinson; that the residence property is still the homestead of the family; that the owner of a homestead may always convey it to a creditor in satisfaction of an indebtedness; that the husband conveyed this to his wife in part satisfaction of his debt, and that Mrs. Tomlinson should be required to marshal the assets and apply the $2,100 received by the husband in the sale; and that the court should give her a lien on the unexempt quarter section for the balance due her and give the plaintiff a lien upon the unexempt quarter to the extent of $2,100. Attention is called to the fact that in the petition plaintiff asked that, if it should be found that Rettie Tomlinson paid any consideration for the lands, it be decreed that the transfer to her was at least constructive fraud, and her interest, if any, be so determined as to afford plaintiff equitable relief.
Undoubtedly plaintiff would be right in its contention were it not for the fact, already referred to, that a creditor cannot complain of any transaction relating to or affecting the homestead or its disposition. Where the title to the homestead stands in the husband, and under the circumstances of this case, he conveys it to the wife with other property, the courts will not inquire as to the consideration for the conveyance of the homestead, but will presume that it was a gift. The creditors of the husband cannot be concerned whether it was a gift or a sale.
It follows that the judgment is affirmed.
No. 23,693.
Per curiam:
In the companion case, No. 23,693, the' plaintiff seeks to subject to its claim the crop of corn grown on the nonexempt land during the season of 1920, after the land was conveyed to the wife. The crop was produced by the efforts of Asa Tomlin-son, who testified that he donated his time and labor to his wife, used his exempt farm implements and teams to raise the crop,, and that it belongs to her. It was attached by the plaintiff. The case is controlled by the decision in the preceding case. The plaintiff’s contention is based upon the claim that it was entitled to set aside the entire transfer, or at least to a lien upon the land to the amount of the value of the homestead. Since the court has found that Mrs. Tomlinson owns the land, of course the crop of corn belongs to her.
The judgment is affirmed. ■ | [
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The opinion of the court was delivered by
Haevey, J.:
This is a suit for damages for personal injuries alleged to have been sustained by a boy nine years of age, against a city of the second class, operating under the commission-manager form of government. The petition alleges that the city owned and operated an electric-light plant; that the electricity from one of its wires carrying a heavy voltage of electricity, because of improper insulation, was conducted by a guy wire from near the top of one of the poles to the ground and caused a steam or vapor to arise from the ground where the guy wire entered; that the plaintiff, noticing this steam or vapor, which aroused his curiosity in an effort to investigate what caused it, took hold of the guy wire and received a severe shock from a heavy charge of electricity; that he was rendered unconscious at the time and was confined to his bed two weeks, was seriously burned on the hand and permanently injured; that his physical and mental condition were affected by the injury, which injury, it is alleged, continued even until the time of filing suit. The petition further alleges that on the day of the injury and within thirty minutes thereafter, the city manager learned of the injury, came to see the plaintiff, investigated his condition, learned what was said to be the cause of it, and was fully informed concerning the facts, and that within three months from the time of the injury the plaintiff and his father appeared before the city commission, where the matter of his 'injuries and the cause thereof was discussed, and the question of whether or not an operation could be performed upon the plaintiff to restore his' physical condition was considered. That the city commission employed a physician to examine plaintiff, and that the physician did examine the plaintiff and made a report to the city commission and they paid his fees therefor. The petition alleges that the injury occurred on the 21st day of October, 1920, and that on April 21, 1921, a guardian having been appointed for plaintiff, a written statement was filed with the city ■ clerk giving the time and place of the happening of the accident or injury received, and the circumstances relating thereto, and that thereafter the suit was filed.
Chapter 143 of the Laws of 1919, entitled “An act establishing conditions precedent to any action for damages against a city of the second class,” reads as follows:
“That Ho action shall be maintained against any city of the second class, by any person or corporation in any court for damages on account of injury to person or property unless the person or corporation injured or damaged shall, within four months thereafter, and prior to the bringing of the suit, file with the city clerk a written statement, giving the time and place of the happening of the accident or injury received and the circumstances relating thereto.”
The court below sustained a demurrer to the petition for the reason that the statute above quoted had not been complied with. The plaintiff appeals, assigning as error the ruling of the court sustaining the demurrer to the petition.
The above-quoted statute, by its title and by its wording, clearly establishes a condition precedent to the bringing of an action for damages to person or property against a city of the second class. A similar statute applying to cities of the first class has been repeatedly held by this court to establish a condition precedent to the maintenance of the action and to require a substantial compliance therewith. (Cook v. Topeka, 75 Kan. 534, 90 Pac. 244; McHenry v. Kansas City, 101 Kan. 180, 165 Pac. 664; Holmes v. Kansas City, 101 Kan. 785, 168 Pac. 1110; Campbell v. City of Wichita, 101 Kan. 817, 168 Pac. 833.) We see no reason for a different ruling upon the statute applying to cities of the second e’lass above quoted.
In 5 Thompson on Negligence, § 6321, the rule is thus stated:
“Statutes have, however, been enacted in several jurisdictions requiring notice to be given to the municipal corporation before an action can be brought against it to recover damages therefor. These statutes generally require notice to be given of the-time, place, cause, and extent of the injury. They are generally construed as being mandatory and as enacting conditions precedent to the bringing of actions against municipal corporations for such causes, so that in order to maintain such an action, the giving of the notice in substantial compliance with the statute must be averred and proved!’
To the same effect is White on Municipal Negligence, § 666, citing many cases.
Appellant contends that the statute, properly construed, does not apply to a minor of the tender years and in the physical and mental condition that the appellant is alleged to have been during the time in question. It will be noted that the statute makes no exceptions as to minors, and for this court to write into the plain, unambiguous words of the statute an exception, in so far as it pertains to minors,, or in so far as it pertains to persons in the physical or mental condition described in the petition, would be to constitute the court a law making power instead of a law-interpreting body. Our legislature has, in a number of instances, embodied provisions or exceptions in statutes pertaining to minors, and the.fact that the law making body did not do so in this statute, in view of what appears to be the disposition of the legislature to- make those exceptions where they desire, would confirm the idea that the legislature did not intend any exceptions of this character in this statute.
In White on Municipal Negligence, § 691, in discussing the effect of disability of party to extend time, it is said: “Infancy of the injured claimant is not an excuse unless made so by statute,” and in the same authority, § 693, in discussing by whom the notice should be given, it is said:
“A statute requiring such a notice in general terms, without any exception, applies to infants as well as to adults.”
In Madden v. Springfield, 131 Mass. 441, it was held:
“The provisions of the statute of 1877, ch. 234, § 3, that ‘any person’ injured by a defect in the highway shall, within thirty days thereafter, give notice to the town, city, place or person obliged by law to repair the same, of the time, place and cause of the injury, includes infants.” (syl.)
In Morgan v. City of Des Moines, 60 Fed. 208, it was said that:
“It is entirely competent for the legislature to enact a general statute of limitations that would put adults and minors on the same footing with refer- ' ence to the time in which actions may be brought, and such would be the legal effect of a statute which contains no saving clause exempting infants from its operation.”
Appellant cites us to the cases of McDonald v. City of Spring Valley, 285 Ill. 52; and Murphy v. Village of Fort Edward, 213 N. Y. 397, holding, in substance, that an exception in behalf of an infant of tender years (in one cáse the age was five; in another seven), should be read' into a statute somewhat similar to ours. This court is not inclined to follow those cases. It will be noted that our statute gives four months for the filing of this claim. It will ibe noted, also, that the petition in this case alleges that the plaintiff with his father, who. was later appointed guardian, appeared before the city commission concerning this matter within three months after the injury. If infancy did not prevent the plaintiff and some one in his behalf from appearing before the commission in this connection with the claim, naturally it would not have prevented the filing of the statement required by the statute.
Appellant further contends that should the statute be construed as applicable to appellant, the petition sets forth facts sufficient to constitute a waiver of such notice and an estoppel to assert same on the part of the city. It will be noted that there is no condition of waiver or estoppel in the statute itself. In view of the various officials and employees which a city may and necessarily does have, to transact the business of its government, it would be a dangerous and uncertain provision to interpret into a statute. Certainly, if the legislature desired or contemplated that the provisions of this statute might be waived, it should have designated the official and the manner in which such waiver .might be effected. No officer of the city had power or authority to waive this statutory notice. In White on Municipal Negligence, § 673, it is said:
“The mayor or other officers of a city have no power, unless expressly granted, to waive the statutory requirements as to the giving of such notice.”
In Gay v. Cambridge, 128 Mass. 387, it was held:
“The notice required by the statute of 1877, ch. 234, to be given to a city or town by a person injured by a defect in the highway, is a condition precedent to the plaintiff’s right to maintain an action therefor and cannot be waived by the city or town.”
To the same effect is Madden v. City of Springfield, supra.
In Puckett & Wear v. City of Ft. Worth, 180 S. W. (Tex.) 1115, in .considering the effect of such notice under the special charter of the city of Ft. Worth requiring the notice to be given within thirty days to the city’s board of commissioners, it was held that the notice to the city engineer was not sufficient.
In Gribben v. City of Franklin, 175 Ind. 500, it was held:
“Under § 8962, Burns 1908, Acts 1907, p. 249, requiring that ‘no action in damages . . . resulting from any defect in the condition of any street . . . shall be maintained against any city . . . unless written notice’ be given. Failure to give such notice precludes the right to maintain such action, and the actual knowledge by a member of the common council does not dispense with such statutory notice.” (Syl., H 6.)
In Pender v. Salisbury, 160 N. C. 363, it was held:
“The municipal authorities cannot waive the provisions of a city’s charter requiring written demand to be made in a certain prescribed manner upon the board of aldermen as a condition precedent to the bringing of an action for damages against the municipalitj-.” (Syl. ¶ 3.)
While not specifically pointed out by appellant, though referred to in some of the cases upon which he relies, there is necessarily the additional question raised by the record in this case, as to whether or not the legislature has authority to enact a statute of this character. In White on Municipal Negligence, § 668, the rule is thus stated:
“Statutes and charter provisions requiring claims for damages against a municipal corporation to be presented within a prescribed period, are within the general scope of the legislative power, and do not violate constitutional rights, provided the period limited is not so short as to deprive the claimant of a substantial remedy.” (Citing cases.)
It will be noted that our statute in question makes the time four months. An examination of some of the other cases discloses that in some of the states the time is made thirty or sixty days and in some instances even a shorter time. The allegations of the petition in this case show that the four months’ time was not an unreasonable time, and hence there is no reason why the general rule should not apply.
Finding no error in the case, the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
MasoN, J.:
A nine-year-old boy was run over by a delivery car of Miller Brothers, receiving fatal injuries. His father, Samuel J. D. Marshall, recovered a judgment against them on the ground that the accident was due to the negligence of their employee, and they appeal.
The jury were instructed that they might award damages, among other matters, for sums reasonably expended for medical services and funeral expenses, and the verdict and judgment presumably includes allowances for these items. The sole question presented is, whether the instruction was proper. The statute reads:
“When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived, against the latter for an injury for the same act or omission. The action must be commenced within two years. The damage cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.” (Civ. Code, § 419.)
The rule adopted by the trial court prevails in the greater number of jurisdictions where this matter has been passed upon. The cases are fully collected and classified in notes to the following text: “While under some decisions adhering to the strict rule that the sole measure of damages is the pecuniary loss occasioned by the destruction of life of the deceased person, there can be no recovery for medical or funeral expenses, the weight of authority is to the effect that recovery can be had for medical and funeral expenses which have been paid by the beneficiaries, or for which they are liable.” (17 C. J. 1338-1340; see, also, 8 R. C. L. 830.) The recovery in such an action as this is, of course, based upon the loss suffered by the beneficiaries and not upon that which falls upon the decedent’s estate; but to confine it, as some courts do, to the injury occasioned by the decedent “not being alive” is in our judgment to construe the statute too narrowly. If in the situation here presented the son’s right of action against the defendant — which covered claims for medical services and perhaps for burial expenses (see note, 7 A. L. R. 1334) — survived to his administrator for the benefit of his estate, there would be better ground for denying liability on ^hose items in the present proceeding for the benefit of the next of kin. But the operation of the statute which considered alone would permit such survival (Civ. Code, § 417) is held in this state, as in a number of others, to be limited by the Lord Campbell’s Act to cases where the death of the injured person results from some other cause than the injury. (Martin v. Railway Co., 58 Kan. 475, 49 Pac. 605; Note, L. R. A. 1915 E 1120.) Except for the statute here sued on, an administrator would have a right to recover for the benefit of the estate on account of medical expenses occasioned by a wrongful injury to the decedent, although it resulted fatally. That right having been cut off in creating the one now sought to be enforced, there is the greater reason for favoring a construction allowing such a recovery in this action, which is in a way a substitute for the other. And the recovery can be extended to funeral expenses more readily than to medical services because the former are literally caused by the death. The argument sometimes suggested that the wrongdoer should not be held liable for funeral expenses, because they would have had to be paid sometime in any event and the tort merely accelerated the date of payment, does not apply, for the burden presumably would not have fallen on the father if it had been postponed until his son’s majority.
We conclude that the items in question were proper elements of damage.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff, under chapter 203 of the Laws of 1919, sought to recover $700 for clerical assistance in the office of probate judge, which had been held by the plaintiff. Judgment was rendered in favor of the board of county commissioners, and the plaintiff appeals.
The case was tried by the court, and special findings of fact and conclusions of law were made, as follows:
“1. That the plaintiff M. F. Short was the duly elected, qualified and acting probate judge of Franklin county, Kansas, which had a population of more than 20,000 and not more than 25,000 inhabitants during the period covered from May 16th, 1919, to December 11th, 1920.
“2. That during said period the county commissioners of said county allowed as clerk hire in the office of the said probate judge, the sum of $10.00 per month; that said probate judge filed with the county clerk of said county each month during said period a claim against said county in favor of the clerk then employed by him in his said office for the sum of $10.00; that from time to time said probate judge held conversations with different members of said board, and with said board sitting as county commissioners, in which he claimed that his clerk should receive further and greater compensation per month; that said board refused to allow any greater compensation for clerk hire in the office of the probate judge than $10 per month.
“3. That in --•, 1920, said plaintiff presented to said board of county commissioners a duly verified claim for $700.00, the amount claimed to have been incurred by him for clerk hire in the said office during the said period, which claim was not allowed.
“4. Clerks were employed by the plaintiff in his said office for some four months of the period mentionéd to whom he paid more than $40.00 per month in addition to the $10.00 per month paid them by the county and he paid said clerks more than $160.00 in addition to the amounts paid them by said county.
“4%. The plaintiff employed his daughter as a clerk in his office for the balance of the time covered by said period; but the evidence does not disclose what he paid her in addition to the $10.00 per month she received from said county if anything.
"5. That compensation for a clerk in the office of the said probate judge to expedite the business of said court is fairly and reasonably worth the sum of $50.00 per month during said period.”
“conclusions op law.
“1. That the allowance of clerk hire to probate judges under chapter 203 of the Laws of 1919 is discretionary with the board of county commissioners.
“2. That the plaintiff is not entitled as a matter of right to allowance for clerk hire in his office of probate judge.”
The question is: Who determines the amount that shall be paid for additional clerical assistance? To answer this question, it is necessary to examine the statuté under which the claim is made. That statute, section 1 of chapter 203 of the Laws of 1919, so far as it is pertinent to the question under consideration, reads:
“The probate judge of each county shall receive for his services the following salary, to be paid by the county: In counties having a population of . . . more than 20,000 and not more than 25,000, $1,600 per annum. . . .
“The probate judges may be allowed for clerk hire in their respective counties: In counties having a population of . . . more than 20,000 and not more than 25,000, $600 per annum . . . Provided, That when the probate judge in any county shall find .that clerical assistance is necessary or that the allowance for clerk hire herein made is insufficient to properly expedite the business of the office the board of county commissioners shall allow such ad ditional sum for clerk hire’as may be necessary to properly expedite the business of the office.”
The plaintiff says, the probate judge determines the amount that is necessary. That is out of harmony with the statutes giving to the board of county commissioners control over the county finances. If it were intended that the probate judge should determine the matter presentation of the claim to the board is a useless formality. They would have nothing to do but direct that the claim be paid. Sometimes; that is all that is necessary; but then the law fixes the liability, or the board has by some means made the county liable. The law does not put the discretionary control of county funds under the control of various officers; that control is placed in the board of county commissioners. The statute under consideration does not specifically place the determination of this matter in the probate judge. Until that is done, the court must construe this statute in harmony with the general policy of the law in this state and say that the board of county commissioners must determine the amount that is necessary for additional clerk hire.
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The opinion of the court was delivered by
DawsoN, J.:
Plaintiff brought this action to recover a sum of money 'alleged to be due him from defendant by virtue of'the latter’s assumption of an obligation originally owed to plaintiff by a third-party.
The circumstances may be summarized: The board of county commissioners of Barton county was engaged in extensive projects of road building, which necessitated the raising of large sums of money by the issue of bonds. The defendant, The Brown-Crummer Investment Company, is a financial concern which deals in municipal bonds. The road projects of the county board were interrupted by litigation which challenged the legality of the board’s proceedings. Meantime contracts for the purchase of some of the road bonds had been entered into between the county board and the defendant investment company, and pursuant thereto $60,000 worth of bonds for road improvements had been issued and delivered to the defendant company. On that issue of bonds, while the legality of selling such bonds for less than par was an open question (since decided in Rowland v. Reno County, 108 Kan. 440, 195 Pac. 868), it was agreed that the defendant should pay par for the bonds and the county board would allow the investment company the equivalent of five per cent for printing the bonds and for attorneys’ services in preparing the resolutions and proceedings pertaining thereto. The matter of payment of this five per cent deduction was deferred, and the county received the full amount of the first issue in cash. A later issue of bonds which the defendant was apparently obligated to buy was declined, and the county board sold them to another party at the prevailing market price, which was $15,840 below par; and the board employed the plaintiff as attorney to sue the defend ant for that sum as damages. After plaintiff had prepared a petition to recover the $15,840, correspondence and negotiations were entered into for the composition of claims and counterclaims between the county board and the defendant. In this correspondence it was made clear to defendant that if the county waived its claim for damages defendant would have to pay for plaintiff’s services to the county on account of that claim for damages. In a letter to defendant and its attorney, plaintiff wrote:
“They [the county board] are willing to enter into a binding contract. . . . There is only one difficulty in the way. On the basis of this settlement they [the county board] will owe us a fee. They do not feel that they can take this fee out of the bond issue. They dislike to pay it out of the general funds of the county. Inasmuch as Mr. Crummer stated that he could sell the Project D stuff at the price at which he would have to take it, he is losing nothing; and they directed me to make this proposition, that they would go ahead on the terms outlined here, provided Messrs. Brown & Crummer would pay our fee, so that the county is out nothing by the compromise. The situation would amount to this, that Brown-Crummer -would secure a release from their obligation, get rid of a lawsuit that, to say the least, is dangerous, and have a binding option on this issue of bonds in the future out of which they are bound to make money, and be out nothing but our fee.”
Eventually a new contract was made and signed by the county board and the defendant, in which it was stipulated -that the county would release the defendant from its claim for damages, and that the defendant should have first call at market price on the further road bond issues, and that the defendant’s cross claim against the county for $3,000 should “remain an open question.” It was also orally agreed — so plaintiff alleged in this action — that defendant should pay the plaintiff $2,000 for his services to the county. Plaintiff’s contract of employment by the county had provided that if he recovered the $15,840 from the defendant his fee should be $5,000, and if a cash settlement satisfactory to the county were effected with defendant, his fee should be ten per cent.
Plaintiff’s evidence fully substantiated the material allegations of his petition. Indeed, the defendant did not altogether deny liability, but contended that it was contingent upon its recovering its claim for $3,000 against the county.
Defendant’s chief officer testified:
“It is possible that it was mentioned, that Mr. Smith’s fee would be taken care of, if an adjustment was effected. . . . Mr. Smith insisted on the payr ment of $2,000.00 attorney’s fees, for which I agreed to pay provided this $3,000.00 fee due us from the county was recognized and paid, and the balance of that contract agreed to and signed. I stated very positively to Mr. Smith that we owed him nothing and that any fee he had coming from Barton county would have to be taken care of out of this contract; and that if they recognized this $3,000.00 fee and agreed to a sale of the bonds at a price that we could afford to buy them at, I would pay; the $2,000.00 fee that he was demanding. I never at any time agreed to pay Mr. Smith’s fee out of my funds except this $3,000.00. ... It was said that the signing of this contract as it was then submitted and the execution and carrying it out would carry with it the payment of the fee — I can’t say who did say that. There was not much discussion of the fee. I just hazily remember that statement was made, that the signing of that contract would carry with it the payment of the fee by us, I think Mr. Smith made the statement. I never.did make it. At the time that statement was.made, if this contract had been signed as it was agreed to, that was the intention.”
This controverted issue of fact was clearly defined by the trial court in its instructions to the jury. The verdict and judgment were for plaintiff, and defendant appeals. It contends that the contract was unenforceable because oral and within the statute of frauds and lacking in consideration.
There is no trouble about the sufficiency of the consideration. Plaintiff had a valid contract with the county board to sue and collect $15,840 from defendant, at an agreed fee of $5,000 if he won, and for ten per cent of any cash settlement to which the county board might agree. The board and the defendant composed this and’ other matters by making a new contract, the effect of which was to terminate the services of plaintiff, and by which defendant got rid of the county’s claim against it for $15,840; but as the county’s claim against defendant had been settled on terms not contemplated when the plaintiff was employed, he was entitled to a quantum meruit from the county, and had an interest in the disposition of the county’s claim against defendant, and that interest had to be satisfied before the county board could prudently make a new contract with defendant. Moreover, defendant got full consideration for its promise to pay plaintiff’s fee. It thereby relieved itself of the county’s claim for $15,840. Clearly, then, it was to serve defendant’s own advantage (Johnson v. Huffaker, 99 Kan. 466, 162 Pac. 1150) that defendant made this original and independent promise to pay plaintiff $2,000, and in reliance thereon4 plaintiff acquiesced in the settlement of the county’s claim — a claim in which he had a substantial interest by virtue of his employment for its collection. Defendant’s promise to pay the $2,000 was, in effect, a substitution for the plaintiff’s claim against the county.
In 27 C. J. 152, it is said:
“It is a general rule that an oral promise to pay the preexisting debt of another in consideration that the original debtor shall be discharged from liability thereon is not within the statute. In such a case, it being agreed that the debt of the original debtor shall be extinguished, there remains no obligation to which the undertaking of the promisor can be collateral, and the promise being founded on a sufficient consideration, namely, detriment to the promisee in the loss of his debt or claim against the original debtor, the promisor becomes an original debtor to an amount equal to the original debt.”
It is argued that there was no evidence of an agreement that the plaintiff had released Barton county. There was evidence of an understanding to that effect; two of the county board testified to that effect. In 27 C. J. 154, it is said:
“Where the creditor, the debtor, and a third person who owes the debtor mutually agree that such third person shall be substituted for the debtor and that the debtor shall be discharged from his debt to the creditor and the third person shall be discharged from his debt to the original debtor, the transaction constitutes a novation and is not within the statute for the reason that in such cases the promise is to pay the promisor’s own debt, and also because there is no subsisting debt of another to which the promise can be collateral, liability upon the promise being the only liability left in force by the novation.”
This doctrine is supported by a wealth of authorities, including our own early case of Grant v. Pendery, 15 Kan. 236, which in some respects is analogous to the case at bar. In that case Pendery was a creditor of Cooper. Grant bought some property from Cooper, agreeing to pay the purchase price to Pendery. Pendery gave Cooper credit for the agreed amount of the purchase price. Grant failed to pay. Pendery sued. Grant raised the statute of frauds, and this court held that the statute did not apply.
Here, by analogy, plaintiff was a creditor on quantum meruit of the county board. Defendant (subject to the hazard of a lawsuit) owed the county board a large sum in damages. Defendant, in consideration of its release from the county’s claim for damages, promised to pay for the services of the county’s lawyer employed to collect that claim. Defendant failed to pay. In such case, the statute of frauds does not apply.
Error is also assigned on the exclusion of evidence which might have shown that the county board afterwards repudiated its agreement with appellant. It is not clear how that fact, if true, could affect defendant’s .liability to this plaintiff; but this excluded evidence was not presented in support of the motion for a new trial; it is not here for review, and therefore no error can be based thereon. (The State v. Ball, 110 Kan. 428, 432, 204 Pac. 701.)
It is finally urged that the contract of employment between plaintiff and the county board was uncertain and could not form a basis for recovery against appellant. There is no merit to this contention. The.contract was as definite as one between an attorney and client usually is — so much, if he won; or a percentage of any sum paid on a cash settlement. A settlement on any other basis gave rise to a claim for services quantum meruit. Furthermore, if any uncertainty inhered in the plaintiff’s original contract of employment, that uncertainty became immaterial when there was a novation which bound and benefited alike the plaintiff, defendant, and the county board.
We note the argument that here the promise was made to the creditor and not to the debtor. Not so. It was tripartite, mutual and reciprocal between the three parties. It is also urged that the agreement was not made at a formal meeting of. the county board. That might be important if the board was resisting an obligation it had irregularly undertaken, but we have no such lawsuit here.'
Judgment affirmed. | [
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The opinion of the court was delivered by
BuhCH, J.:
The action was instituted by a number of Wichita merchants, to enjoin enforcement of an occupation-tax ordinance. The injunction was granted, and the city appeals.
The ordinance reads in part as follows:
“Section 1. That there be and hereby is levied and assessed upon each, every and all trades, businesses and occupations carried on, conducted or maintained in the city of Wichita, Kansas, in which, or incident to which, there is used and operated, used or maintained, any delivery wagon or wagons, truck or trucks, an occupation tax equal to the following amounts:
“(a) For each such business, trade or occupation in which a delivery wagon or wagons, or truck or trucks of one-half ton or less is used, the annual fee of $5.00 per year.”
Then follows a graduated schedule, concluding with a tax of $11 on those businesses in which trucks are used of a capacity of four tons or more, and a provision for a cumulative tax according to schedule, for total rated tonnage.
The evidence was that the plaintiffs deal in fruits, produce, hardware, groceries, and other articles of merchandise, and make deliveries of commodities by trucks. There are, however, merchants in the city engaged in the same kinds of business who make deliveries by other means than wagon or truck, and some who do not deliver goods to customers otherwise than at their stores. The ordinance was attacked as violative of the federal and state constitutions, because discriminatory, and as an attempt to impose a license fee on motor vehicles contrary to the provisions of chapter 69 of the Laws of 1921. Section 10 of that act exempts from municipal license fees all motor vehicles whose owners have complied with the state registration and licensing law.
I'he state law is limited to the subject expressed in its title — the registration of automobiles and other motor vehicles. For such registration a state license fee is imposed. The subject was one which demanded regulation of uniform operation throughout the state, and the statute is necessarily exclusive within its field. It does not, however, embrace the subject of city license taxes on business or occupation, and the question is whether the tax levied by the ordinance falls within that class.
In determining the amount of a business or occupation tax, the city may use property as a measure, without imposing a tax on the property itself. (City of Newton v. Atchison, 31 Kan. 151, 1 Pac. 288.) Thus a tax on the business of selling may be measured by the gross amount of sales, and not be a tax on the property sold. Illustrations may be found in 17 R. C. L. at page 511, and a case note in 12 L. R. A., n. s., at page 568, gives instances of license taxes graded according to the number of animals or vehicles employed in the business. The principle is the same as that which enables us to estimate the impecuniosity of a man by the number of worthless dogs he keeps. In the case of City of Lawrence v. Kagi, 105 Kan. 520, 185 Pac. 60, a license tax was imposed on persons delivering milk in the city. In the opinion it was said:
“While the number of cows is used as a basis in fixing the amount of the fee, it is in no sense a tax on the cows, and it cannot be regarded as an unreasonable or illegitimate charge for police surveillance.” (p. 522.)
The principle is the same whether the tax be levied for purpose of regulation or for revenue. In this instance the truck tonnage used in or incidental to a business was made the standard by which to compute the contribution which the business ought to make. The standard is reasonably indicative of nature and quantity of business, which is an approved basis for computation of license taxes, and the tax is not a motor-vehicle tax.
The plaintiffs interpret the ordinance as applying solely to the business of those merchants who carry sold goods from store to customer, and limited their proof accordingly. The interpretation is altogether too narrow. The ordinance relates to truck tonnage, however it may be employed in or be incidental to a business.
No scheme of license taxes in a modern city can be perfect. There must be some omissions and some inequalities. The city must be accorded a large discretion in framing its regulatory and revenue measures, and in this instance we have the judgment of the city commission, familiar with the business and the business methods of the locality and their relations to problems of municipal government, that the ordinance is as equal and fair as may be. Wagons and trucks are so nearly necessary and universal accessories to city trades, businesses, and occupations, that it may not be declared, ex cathedra, that businesses using' such vehicles may not be licensed as a class. There can be no sound judgment respecting such a classification without intimate acquaintance with facts which the court does not judicially know. Conceding soundness of classification, the case, City of Covington v. Dalheim, etc., 126 Ky. 26, decided in 1907, and chiefly relied on by the plaintiffs, is an authority that the tax may be graded by the number of vehicles employed.
The judgment of the district court is reversed, and the cause is remanded with direction to deny the injunction. | [
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The opinion of the court was delivered by
Johnston,.C. J.:
The question involved in this case is whether
the plaintiff may recover for the death of her husband, an employee of the railway company, who was-struck and killed by a train of the defendant without fault or negligence on the part of the defendant. The recovery sought was under the workmen’s compensation law, and we have the question whether or not the defendant was within the provisions of that law, and liable to pay compensa- - tion under its terms at the time the accident occurred. Under the act the defendant is presumed to have accepted its provisions unless it filed a statement with the secretary of state declining to accept or be governed by the act. (Laws 1917, ch. 226, §§ 1, 23.) It appears that after the passage of the law, and on June 6,1917, the defendant formally elected not to accept the provisions of the act, and this election was in effect when McFarland met his death, unless it was abrogated by the action of the government in taking over the possession and control of the railroad for war purposes. Federal control of the railroad was taken on December 26, 1917, and from that date it was controlled and operated by the director-general under the transportation act of congress until March 1, 1920. The railroad never changed the election it made in 1917, nor did it make another election after the federal control was surrendered. The trial court held that the intervention of the government rendered the election made by the company in 1917 ineffectual and that not having made another election not to come under the provisions of the compensation law it was within that law' and liable to pay compensation to plaintiff in accordance with its terms.
Did the intervention of the government, when it took over the control and operation of the defendant’s railroad, cancel and invalidate the election made by the defendant on June 6, 1917? While complete possession of the railroad was taken by the government, it was only a temporary taking under an emergency provision, the design being that federal control should only continue during the war period. Federal control was taken of the physical properties and of the managing officers and employees. These officers and employees became for the time being the officers and employees of the government under the control of the director-general, and therefore it has been held that it was necessary for that officer to elect whether or not he would operate the railroad under the workmen’s compensation law. (Gimple v. Railroad Co., 108 Kan. 118, 193 Pac. 1072.) The defendant, however, did not lose its corporate existence by the compulsory appropriation of the use of its railroad and the taking over of its managing officers and employees. Its duties to the state and the obligations it had assumed were not canceled by the provisional control of the government. Its rights and privileges, as well as its duties and obligations, outside of the control and operation of the railroad remained the same as before. When the compensation law was enacted the defendant took advantage of the provision giving employers the option to elect whether they would operate under that act. Defendant elected not to accept its provisions and its status and rights under the election became fixed. This election was not made for a month or a year or for any limited time, it was for all time unless it chose to bring itself within the act by a new election to that end. It has not changed its election and has not voluntarily done anything to annul the election made. It did not dispose of its property or do any other disabling act. The government in the exercise of the war power took over the railroad and operated it under a right in the nature of eminent domain. (North Carolina R. Co. v. Lee, 43 Sup. Ct. Rep., 2.) The temporary suspension of operation did not change, the corporate relation or duties of the company to the state outside of the control assumed and enforced by the government, and we do riot think that it affected the relation fixed by its election. It was still required to make reports to public officers, hold stockholders’ meetings, elect officers, perform its contracts, declare dividends, adjust financial obligations, and carry on as a corporation, except, as to those functions wrested from it by the government. It had established relations with the state, and one of them had been fixed by the election that it should not be within the operation of the workmen’s compensation law. This we think was not annulled by the conscriptive federal control which, under some circumstances, might not have lasted more than thirty days. In the interim the company maintained its relations with the state, kept its machinery running, and stood ready to take up its tasks where it left off, not knowing the day or hour when its physical properties would be restored and it would be required to resume control and operation of its railroad. When it did so its corporate status was the same as when the control was taken from it, and its duties, rights and relations with the state were the same.
We conclude that the relation fixed under the compensation law was unbroken by the enforced control of the government, and therefore the judgment of the district court must be reversed and the cause remanded with the direction to enter judgment for the defendant. | [
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The opinion of the court was delivered by
JohNSton, C. J.:
This action was brought by J. 0. Emerson, as trustee in a bankruptcy proceeding, against the Western Automobile Indemnity Association, upon a contract of indemnity between the bankrupt, W. P. Sterrett, insuring him against loss resulting from injury to persons or the property of others in the operation of his automobile. The plaintiff recovered, and defendant appeals.
While driving his automobile Sterrett negligently struck and injured Carl A. Anderson, for which Anderson recovered a judgment for $2,500 which was reviewed in this court. (Anderson v. Sterrett, 95 Kan. 483, 148 Pac. 635.) The indemnity contracted for was not paid by the association, and under the terms of the policy an action thereon could not be maintained by the insured until the loss had been paid by him in money. It w'as alleged that the association, to prevent the maturity of the obligation and avoid the payment. of the insurance, wrongfully interfered with the contractual rights, and persuaded and induced Sterrett to withhold payment or enforcement of the judgment, and to that end had employed attorneys to resist proceedings in aid of execution, and also persuaded and prevailed upon Sterrett to file proceedings in bankruptcy, all being done to prevent payment or satisfaction of the judgment and to evade and defeat liability on the indemnity contract.
On the first trial of the case judgment was given for plaintiff, but on an appeal the case was reversed for an error in the admission of evidence. (Emerson v. Indemnity Association, 105 Kan. 242, 182 Pac. 647.) The second trial resulted in another judgment for plaintiff, and it is the one of which defendant is now complaining.
It is first insisted that the action should be regarded as one of tort and, being of that character, the trial court did not obtain jurisdiction over the defendant by the process served upon it. That question was determined on the first appeal and it was held to be an action on the policy. It is contended further, that the character of the action was changed by an amendment of the petition after the first appeal. That amendment was made in response to a statement in the opinion on the former appeal that the petition did not fully and definitely allege that the misconduct of defendant prevented the maturity of the indemnity obligation and the payment of Sterrett’s loss in money. From the general averments made in the first petition it was assumed that the defendant’s purpose was to prevent payment, and that its efforts in that direction had resulted in the nonpayment of the judgment. Upon that interpretation and theory the law of the case was declared, and it must be held that the amendment did no more than to elaborate the aver-ments as to the wrongful interference of the defendant in preventing the payment of the judgment and the maturity of its indemnity contract. • The evident purpose was to make the amended petition conform to the assumed intent of the original petition and in no sense did the amendment change the cause of action.
The principal contention is that there is a lack of proof that the defendant did interfere with the contractual relations of the parties or had wrongfully induced Sterrett to defeat the payment of the judgment. . The defendant employed counsel to defend the claim of Anderson against Sterrett which resulted in a judgment, but this was its right as well as its obligation under the .contract of indemnity and its by-laws. Plaintiff says, however, that the evidence shows that it did not stop with the exercise of this right but thereafter substituted itself for Sterrett, intermeddled with the proceedings and interfered with the steps taken towards the enr forcement of the obligations of Sterrett to Anderson. When proceedings in aid of execution were first instituted the attorneys that had represented the defendant appeared with Sterrett and resisted the application of his property to the satisfaction of the judgment. About a year later another proceeding of the same character was begun and the same counsel appeared and made like resistance. While an officer of the defendant said that the attorneys who appeared in these proceedings were not acting for the defendant or paid by it for their ¡services, and Sterrett also stated at one time that they were acting upon his own request and employment, yet his own testimony in that respect appears to be contradictory. He testified that he had asked the attorneys to appear for him and had not since paid them, but that he expected to pay them when they sent him a bill. The service was rendered about seven years before the trial in this case, but no bill has been presented to or paid by him. In testifying in one of the proceedings at another time and in answer to a question whether he employed the attorneys in the proceedings or were they employed by the association, he answered, “They were employed by the automobile indemnity association or I suppose they werb.” In answer to another question if it was not a fact that the attorneys did not appear for him, but did appear for the association, he answered, “No, I don’t think that is so. I don’t know.” A witness stated that on one occasion when Sterrett was asked why he stood all the questioning and embarrassment of the proceedings towards the enforcement of the judgment when the association owed the indemnity and he had paid for it, and why he did not allow it to be collected and the judgment paid, he replied, “That is all right, the insurance company will take care of me on that.” Notwithstanding the denials that the attorneys were acting for the defendant in these proceedings, a part of the evidence warranted the inference drawn by the jury that the attorneys represented the defendant and were acting for it in these proceedings. As to the participation of the defendant in the bankruptcy proceeding there was the evidence that about the time the judgment was obtained R. P. Rice, a brother of the president of the defendant, and its agent to adjust and settle claims, visited Anderson several times and sought to obtain a compromise of the claim, offering to pay $700 to settle it. He stated that he was representing the defendant and that if his offer was not ac cepted Anderson would get nothing. As an inducement to settle on the basis of the offer he stated that Sterrett would file a petition in bankruptcy, transfer his property to his wife, and, if the offer was not accepted, nothing would be paid. He further said that the association had a similar case in Joplin, Mo., where he made an offer of settlement which was refused, and the result was the claimant got nothing. In testifying to the character of his agency, Rice stated that he was an adjuster of defendant, but that he did not negotiate settlements of claims without express authority from the defendant. According to ewdence in the case he did represent the defendant in the attempt to settle the claim in question, and in that capacity represented that Sterrett would become a bankrupt and that Anderson would get nothing unless the offer he made was accepted. What the adjuster said would happen actually did happen. Sterrett followed the course marked out by the representative of the defendant. It appears the home was held in his wife’s name and that he took the benefit of the bankrupt act. This evidence of itself was not conclusive as to the charge made against the defendant, but it was competent testimony and, with other testimony and circumstances brought out, tended to prove the unlawful interference of the defendant to prevent the ripening of a liability against it for the indemnity and to prevent the payment of the judgment. It tended to show that it dominated Sterrett and employed him as a factor in evading the maturity of its obligation for indemnity and in defeating the payment of the judgment.
A contention is made that the court erred in the instructions given to the jury. One complaint is that there was no basis for an instruction that if a finding was made from the evidence that the defendant assisted Sterrett in the proceedings in aid of execution and in the bankruptcy proceeding, that fact in connection with the other evidence might be considered in determining whether the defendant induced or procured Sterrett to refuse payment of the Anderson judgment. We have ascertained that there was evidence tending to prove the facts recited and hence there was no error in the instruction.
Another instruction challenged, related to the payment of the expenses of the litigation. The jury were advised that the defendant had a right to pay the necessary expenses incurred in defense of the action in which the judgment was obtained against Sterrett, and. that items of expense paid for that purpose could not be considered in determining the liability of the defendant in this action, but if the expenses contributed by defendant were not used in paying the actual expenses of the Anderson action, the jury might consider it for what it was worth, taking into consideration all the facts disclosed by the evidence in regard to the liability of the defendant. There was evidence of checks sent and remittances made by the defendant to its attorneys, but the president of the association testified that these were for expenses in the Anderson action. It was a question for the jury to determine the credit to be given to his testimony as to whether the remittances were for the necessary expenses of that litigation, and if they so found they were told that they could not consider them in determining the liability of defendant in this action. We discover no material error in the instructions.
Criticism is made of that part of the charge in which the court in effect said that the Anderson judgment created an obligation of the highest order and that the law does not impute to Sterrett an intention to evade or defeat the obligation of the judgment, and if the jury found that he would probably have ^>aid the judgment voluntarily or involuntarily but for the interference of the defendant by inducing him not to pay it so that defendant could not be compelled to pay the indemnity which it had contracted to pay, or if it had induced Sterrett to become a bankrupt and thereby be discharged from the payment of the judgment, the plaintiff would be liable. In that connection the jury were told:
“It is not necessary for the jury to find with absolute certainty that Sterrett would have paid the judgment to Anderson if the defendant association had not meddled in the matter, if you find it did meddle, but it is necessary that the jury shall find that there was a reasonable probability that a man in Ster-rett’s condition in life, taking into consideration his financial ability, his earning capacity, and all other facts shown in the evidence would have paid said judgment voluntarily or involuntarily, had the defendant not meddled.”
There is no good ground for complaint of the - statement that the law does not impute to Sterrett an intention to evade or defeat the obligation of the judgment. Fraud and wrong is never to be imputed without satisfactory proof. The instruction as given does not carry the import assumed by defendant, that as the law did not impute such a purpose to Sterrett that somebody must have persuaded or induced him to do it, and that somebody was the defendant. In the instructions the jury were told not to find against the defendant unless the evidence established that it had meddled and interfered to prevent the payment of the judgment. The part of the instruction which related to the certainty of proof that Sterrett would have paid the judgment if the defendant had not meddled in the matter accords with the rule laid down in the opinion on the former appeal, where it was said:
“Absolute certainty that Sterrett would have paid the judgment, if the defendant had not meddled is not essential. A fair and reasonable probability is all that need be established.” (Emerson v. Indemnity Association, 105 Kan. 242, 248, 182 Pac. 647.)
Aside from the evidence as to the interference with contractual rights by defendant there was testimony produced tending to show that Sterrett was earning about $4,500 a year, had an automobile worth about $2,000, had purchased a home, the title of which had been taken in the name of his wife, and that when he took the benefit of the bankrupt act his only indebtedness other than a few small items was the Anderson judgment of $2,500. The indemnity in question 'to which he was entitled was sufficient to have met this obligation. Instead of procuring and using the indemnity for that purpose he yielded to the-influence and machinations of the defendant whose purpose was, according to the evidence, to disable Sterrett and prevent the payment of the judgment and thus evade its obligation to pay the indemnity.
Some objections were made to rulings on the admission of testimony, but in these we find nothing substantial.
A cross appeal has been filed by the plaintiff in which he complains of a ruling excluding the letters of defendant’s attorneys to their client respecting the litigation. No error can be predicated on these rulings, first, because plaintiff is not asking and admits that he does not desire the verdict to be set aside or that a new trial be granted. Another reason why the assigned error should not be considered is that this question was determined on the former appeal, in which it was held that the letters were privileged communications, and no reason is seen for changing that decision.
He further complains that he was not allowed interest on his recovery prior to the rendition of the judgment against defendant in this case. There is ground for this complaint. The evidence establishes that the interference of the defendant began at least as early as the time the Anderson judgment was rendered. The action, as we have seen, was on the contract of indemnity, and but for defendant’s interference the judgment would have been paid. The wrong of the defendant in this respect deprived' the plaintiff of the use of the money adjudged to be paid, and plaintiff was therefore entitled to interest at the legal rate from the time the Anderson judgment was rendered. Defendant cannot be exempted from the payment of interest or allowed to profit by its wrongful action in withholding indemnity -which it should have paid and keeping the plaintiff out of the use of the money to which he was entitled. The jury made no specific finding as to interest, but it appears from the record that no interest is included in the verdict. This is shown by the fact that the verdict is for the exact amount of the judgment. The dispute between the parties was whether or not there 'had been an unlawful interference with the payment of the judgment, and there was no actual controversy as to interest. The trial court rightly told the jury that if they found that payment was prevented by the defendant and that Sterrett was induced by it to become a bankrupt so as to be discharged and released from payment, plaintiff would be entitled to the amount of the judgment with interest on $2,500, the amount of the indemnity from the date of the judgment, to wit, March 19, 1914, at the rate of six per cent per annum. There being no controversy over the amount of recovery, if defendant was found to be liable, and that amount having been definitely determined as the amount of the judgment, and it being clear that interest was not included in the verdict, the judgment is open to correction at this time. It is not nécessary to resubmit that question to the jury. It has been said:
“When in such case it clearly appears from the findings of the jury that no interest has been included in their verdict, and it also clearly appears from such findings, from the admission of the party to be pharged or other incontrovertible evidence, from what date interest should be allowed, the court may compute the interest and include it in the judgment.” (Smith v. Railway Co., 90 Kan. 757, syl. ¶ 4, 136 Pac. 253.)
(See, also, Girardey v. Girardey, 99 Kan. 679, 163 Pac. 165; Berry v. Dewey, 102 Kan. 392, 170 Pac. 1000; Smith Bros. v. Hanson, 106 Kan. 32, 187 Pac. 262; Manross v. Oil Co., 107 Kan. 71, 190 Pac. 619.)
In such a case it is a mere matter of computation, as much so as if the jury had allowed interest at a rate other than the legal rate, or as if there had been special findings expressly excluding interest where under the law a party was clearly entitled to interest upon the recovery for a definite time at a definite rate. Being a matter of computation it could and should have been added by the court. The trial court is therefore directed to award interest to plaintiff at the rate of six per cent per annum on $2,500 from March 19, 1914, and when so .modified the judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.;
This was an action against a bank to compel payment of a check drawn in favor of the plaintiff by a cattle buyer who was alleged to be doing business on bank credit by virtue of an arrangement whereby the defendant bank was to honor the' cattle buyer’s checks and the cattle buyer was to deposit sight drafts drawn on a commission house which was the consignee of the cattle thus purchased.'
It appears that early in the year 1918, two business men, Jennings and Roller, who had good standing with the defendant bank, called upon the bank’s officers. They were accompanied by George E. Witham, a cattle buyer. They proposed an arrangement to which the bank’s officers agreed that Witham should buy cattle and issue checks on the bank in payment therefor, that Witham should draw sight drafts on Jennings and Roller and deposit them ■to his credit in the bank, and that they would honor such drafts by paying them out of the proceeds of the cattle when marketed. Pursuant to this arrangement Witham bought cattle and paid for them by checks which the bank honored; sight drafts on Jennings and Roller were drawn by Witham, deposited in the bank, presented to Jennings and Roller, and paid. Credit was given to Witham on these drafts. After this arrangement had been pursued for about three months, these three men, Jennings, Roller and Witham, again called at the bank, and Jennings and Roller said to the bank’s officials that Witham was doing business successfully and that it was needless that he should draw drafts on them any longer, and they proposed that thenceforward Witham should draw sight drafts directly upon the Woods-Egan Live-stock Commission Company at Kansas City, the consignee to whom the cattle bought by Witham were usually shipped. The bank acquiesced in this proposed change in the earlier arrangement; and thereafter for some months this altered practice was adhered to. Witham bought cattle, gave checks in payment on the defendant bank and drew sight drafts on the Kansas City firm and deposited these with the bank, and the Kansas City firm honored the sight drafts. Sometimes Witham’s account was overdrawn, and there was some testimony for defendant that not in every instance would the bank pay Witham’s checks when he had overdrawn; but it was also shown that with increasing frequency as time progressed the bank paid his checks for cattle regardless of temporary overdrafts upon his bank account.
On October 5, 1918, Witham purchased 25 head of cattle from plaintiff and gave him a check for $2,746 on the defendant bank in payment therefor. About the same time, perhaps on the previous evening, Witham deposited in the bank a sight draft on the Woods-Egan Commission Company for $3,500. On October 8, on receipt of a shipment of 51 cattle from Witham, the commission company paid the sight draft. The plaintiff deposited Witham’s check for $2,746 in a bank in St. Francis and it arrived at the defendant bank on October 10, where it was dishonored and protested. Hence tips lawsuit.
Issues were joined; the cause was tried before a jury. Verdict and special findings favorable, to plaintiff were rendered, and judgment was entered thereon.
It is first urged by defendant that the action should have been abated or dismissed when it was shown that Witham, codefendant, had died before the trial. But Witham was not a necessary party, and the plaintiff’s right of action survived against the bank under the issues joined. (Civ. Code, § 421; 1 C. J. 232.)
Touching the defendant’s objection to the introduction of evidence, the petition sufficiently pleaded the agreement, the mode of defendant’s business pursuant thereto, the receipt by the bank of the proceeds of the sale of the cattle by the payment of the sight draft for $3,500, and the bank’s duty and dereliction. The objection was properly overruled. (Goeken v. Bank, 100 Kan. 177, 163 Pac. 636; id., 104 Kan. 370, 179 Pac. 321.)
Error is assigned in the admission of certain testimony. A witness, Harry Scoby, ■ over objection, testified to conversations he had with Witham at various times during 1918 when Witham told him he was buying and selling cattle and shipping them to the Woods-Egan Live-stock Commission Company. This was immaterial, and moreover that fact was not in dispute. Elsewhere this witness narrated a conversation which he had with Witham a few days after October 5, in which Witham stated: “I can’t take your cattle, boys, the bank has quit me.” This testimony was incompetent, but it, too, was immaterial. The bank had “quit” him; that fact was not in dispute; it “quit” him when it declined to honor his check of October 5.
More serious, however, was the admission of the testimony of O. A. Laird,'of Wray, Colo. Laird testified that in 1919 he had a conversation with Witham about the shipment of cattle and payment of checks and his arrangements for their payment at the defendant bank during the summer and autumn of 1918.
“Q. 7. What was that conversation?” [Objection. Overruled.]
“Q. 11. Commence at the beginning. A. What conversation I had with him? '
“Q. 12. Yes, sir. A. Well, he was making explanation in regard to how he got into this business.” [Objection. Overruled.]
“A. He said he had got behind with the bank at Bird City and they told him to go out and buy some cattle, that his luck would change. This explanation he makes to me, and said that he came around the second time he was still further behind with the bank and they told him to draw a sight draft on his commission firm for Three Thousand Dollars to cover his shortage at the bank, and he said he did so, and then he got kicked or crippled some way with a horse and he said that when the time came to make this shipment he had nothing to ship and the bank told him to wire his commission firm ‘Not shipping anything to-day,’ which he done he said. And then he said the bank advised «him to go out and buy something which he did, for next Saturday’s shipment, is the statement he made to me.”
Counsel for appellee virtually concede that this evidence was incompetent, but argue that it was nonprejudicial. The court is unable to yield to that excuse for such a palpable violation of the simplest of all rules of the law of evidence — the imperative necessity for the exclusion of mere hearsay which has the fatal defect of depending on the unsworn veracity of another person than the witness. (Stark v. Cummings, 5 Kan. 85; Kansas Pacific Rly. Co. v. Pointer, 9 Kan. 620; Muscott v. Hanna, 26 Kan. 770, syl. ¶ 3; Crawford v. Crawford, 60 Kan. 126, 55 Pac. 842; Miller v. McDowell, 63 Kan. 75, 64 Pac. 980; Mallinger v. Sarbach, 94 Kan. 504, 146 Pac. 1148; The State v. Henson, 105 Kan. 581, 588, 185 Pac. 1059.)
This testimony could not possibly fall within any of the exceptions to the hearsay rule; and its prejudice to the defendant was manifest. One of the chief contentions of the bank was that it had not agreed to honor Witham’s checks regardless of the state of his account. The incompetent testimony that the bank’s officers were urging defendant to go out and buy cattle and that they told him to draw a sight draft on the commission house when he had no cattle to ship and to deceive or mislead the commission-house with a telegram, “Not shipping anything to-day,” was open to the most prejudicial inferences that a jury could draw touching the defendant’s business practices and was bound to shake their credence in any testimony the bank’s officers might give in its behalf.
Noting other matters urged in defendant’s brief, the court can discern no error in overruling the demurrer to the plaintiff’s evidence. It is argued that without the incompetent testimony of Laird touching what Witham had told him there was no evidence to show any 'arrangement or agreement between the bank and Witham that the bank would pay his checks for cattle. The court cannot assent to that contention. While the bank officers testified that there was no such agreement, yet even their testimony as to how the bank dealt with Witham, together with. the record of Witham’s account with the bank during the late summer and autumn of 1918, went a long way towards establishing the agreement, although, of course, the jury might not have taken that view of the matter if the prejudicial and incompetent testimony of Laird had not been admitted to supplement it.
Another error urged relates to the exclusion of certain testimony offered by defendant, but this does not appear to have been pressed on the trial court’s attention in a motion for a new trial, and the excluded evidence has not been brought on the record so as to permit its review. (Scott v. King, 96 Kan. 561, 567, 152 Pac. 653; The State v. Ball, 110 Kan. 428, 432, 204 Pac. 701.)
Some fault is found with the trial court’s instructions, but these seem to be clear statements of the law pertinent to the issues.
The defendant was not entitled to judgment on the special findings, nor to have them set aside.
A minor point is that plaintiff did not own all the cattle. But he sold them and Witham gave him the check in payment. The owner appears to have authorized their disposition by plaintiff and that he should receive the payment therefor. It is elementary that one person may assign what is due to him for mere purposes of collection. (Currant v. Lenger, 107 Kan. 107, 190 Pac. 432, syl. ¶ 2.) Furthermore, no issue on this point was raised in the pleadings. '
It is also argued that plaintiff’s cattle were not traced into the consignment received by the commission house about October 8. Harry Scoby’s testimony touching the loading and shipping of the cattle on October 5 and the other evidential incidents seem to show that this point was merely another jury question.
In a belated reply brief, defendant seeks to magnify the point that the $3,500 draft was drawn before the plaintiff’s cattle were purchased. That was a mere item of evidence whose significance was for the jury’s consideration. If the draft was drawn in contemplation of the purchase of cattle and plaintiff’s cattle were purchased and shipped to the drawee pursuant thereto, and the draft was paid because of the receipt of such shipment, and the defendant knew that the proceeds of the draft contained the proceeds of plaintiff’s cattle before it protested the check and otherwise disposed of the sum realized on the draft, a premature drawing and depositing of the sight draft would not be fatal to plaintiff’s recovery. Moreover, the evidence inherent in the circumstances tended to show that the bank concurred and acquiesced in the drawing of the draft on October 4 and dating it October 5.
Because of the admission of incompetent and prejudicial testimony the judgment must be reversed and another trial ordered; but it is needless to go over the whole case again. (Civ. Code, § 307; Harris v. Drenning, 101 Kan. 711, 717, 168 Pac. 1106.) In the new trial granted, only two questions will need attention.
First, if the evidence shows that the proceeds of the sale of plaintiff’s cattle were included in the $3,500 paid by the Woods-Egan Commission Company, and if the defendant bank was so informed before it devoted that money to the payment of Witham’s overdrafts or otherwise disposed of it, defendant is liable.
Second, if the evidence shows that during the summer and autumn of 1918 there was an arrangement or understanding between Witham and the bank that he was to draw checks on the bank to pay for cattle purchased by him and that he was to deposit sight drafts with the bank drawn on the commission company for cattle shipments, and that the bank would honor and pay such checks regardless of the state of Witham’s account, the defendant is liable.
If plaintiff can establish either of these propositions to a jury’s satisfaction, he is entitled to judgment; otherwise defendant is entitled to judgment.
Reversed and remanded for a new trial in accordance herewith. | [
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The opinion of the court was delivered by
BueCH, J.:
The plaintiff recovered compensation for services rendered to the defendant as foreman and as pumper in the operation of a described lease. The defendant appeals.
The petition alleged the plaintiff was employed on behalf of the defendant by its president, W. E. Walker. The evidence established the contract of employment and the rendition of service. When the plaintiff changed from foreman to pumper, he had a conversation with Walker about his pay, which had been eight dollars per day. He testified as follows:
“I asked him the first day of April here at the carbon plant whether he was intending to pay me S8.00 a day or not. He asked me if I thought I deserved it. I said I was doing more work than I was then, and he said, ‘You have raised my production, and I am going to let it go at that.’ ”
The plaintiff worked 108 days. The defendant is a foreign corporation, and introduced no evidence.
The president of the company appears to have been in the field, assumed authority to hire a foreman, observed the foreman’s conduct of operations, and noted the resulting benefit to the company’s business. Under the circumstances, the company was chargeable with notice of how its business ,was being conducted. It did not repudiate the contract, and appropriated the plaintiff’s labor for more than three months. Employment of the plaintiff was an act which the company’s board of directors might have committed to its president, or might have ratified, and they must be deemed to have acquiesced in the president’s management of affairs.
The defendant says the plaintiff's account of his time showed he worked on Sunday, and consequently the contract was void, and the judgment as a whole is erroneous. Illegality of the contract was not pleaded as a defense. After the time for filing a motion for a new trial had gone by, the defendant moved that the judgment be modified by disallowing pay for the Sundays on which the plaintiff worked. If the issue of illegality had been presented regularly, perhaps the plaintiff might have shown that his Sunday work was a work of necessity. As it was, the court was not obliged to reopen the case.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Price, C. J.:
This appeal is from an order denying relief under K. S. A. 60-1507.
On January 17, 1959, defendant James Mearl Sharp (petitioner and appellant here) was charged in the district court of Sedgwick county in three counts — being kidnapping in the first degree, kidnapping in the second degree, and forcible rape, respectively.
Under court appointment, Mr. James B. Harrison had represented defendant at his preliminary examination, but later was permitted to withdraw “for the reason that defendant has wholly failed to cooperate.”
Mr. John Dekker, a member of the Wichita bar, was then appointed to represent defendant.
On January 27, 1959, the matter came on for hearing in the district court and the following proceedings were had. (Mr. Sanborn and Mr. Goodwin were county attorney and deputy county attorney, respectively.)
“Mr. Sanborn: The State moves to dismiss count 2 of the information charging second degree kidnapping of the child.
Mr. Dekker: Did the Court sustain that motion?
The Court: Yes, that motion will be sustained, Are you ready?
Mr. Goodwin: Yes.
Mr. Sanborn: Your Honor we have before the Court James Merl Sharp with his attorney Mr. Dekker.
The Court: All right. Your name, sir, is James M-e-r-l-e?
The Defendant: M-e-a-r-1.
The Court: James Mearl Sharp?
The Defendant: Yes, Sir.
The Court: How old are you Mr. Sharp?
The Defendant: 32.
The Court: 32 years?
The Defendant: Yes.
The Court: Do you have an attorney to represent you in this matter Mr. Sharp?
The Defendant: Yes, sir.
The Court: And that attorney is who?
The Defendant: Mr. Dekker.
The Court: Mr. John Dekker?
The Defendant: Yes.
The Court: And the Court has appointed Mr. Dekker to represent you in this matter?
The Defendant: Yes.
The Court: And you have discussed this matter with Mr. Dekker?
The Defendant: Yes, sir.
The Court: Has he been arraigned?
Mr. Dekker: Your Honor I was informed when I was appointed that he was formally arraigned.
Mr. Goodwin: He has been formally arraigned.
The Court: You did get a copy of this Information?
The Defendant: Yes, sir.
The Court: And you have read it and discussed it with Mr. Dekker?
The Defendant: Yes, sir.
The Court: Mr. Sharp after having received a copy of this Information and after having discussed this matter with Mr. Dekker are you in your opinion familiar with the charges that the State has brought against your here?
The Defendant: Yes, sir.
The Court: In other words you know what you are charged with?
The Defendant: Yes, sir.
The Court: Mr. Dekker in your opinion does Mr. Sharp — first let me ask you this, have you discussed this Information and these charges with Mr. Sharp?
Mr. Dekker: Yes, your Honor, I have discussed all charges against him and the probable evidence and the result of the trial, the possible outcome of the trial, and also the possible sentence that may be imposed.
The Court: Well, in your opinion Mr. Sharp is acquainted and familiar with the charges that the State has filed against him?
Mr. Dekker: Yes, your Honor, but I don’t believe he has been informed that the second count has been dismissed.
The Court: Is that your understanding Mr. Sharp? Count 2, the second count that the State had filed here, and that is in substance that count of kidnapping so far as it pertained to Scott Ellis Louthan has been dismissed by the State.
The Defendant: Right.
The Court: The leaves the count one then, the charge of kidnapping Sharron Lucille Louthan; and the now second count, that being the count of rape. Am I correct Mr. County Attorney?
Mr. Sanborn: Yes, your Honor.
The Court: Then as to this count one, this charge of kidnapping one Sharron Lucille Louthan, Mr. Sharp, how do you plead, guilty or not guilty?
The Defendant: Guilty, sir.
The Court: Will you speak up just a little bit so that Mr. Potts can hear you?
The Defendant: Guilty.
The Court: You are pleading guilty to count one, Mr. Sharp, for the reason that you are guilty?
The Defendant: Yes, sir.
The Court: And for the reason that you did what the State charges that you did?
The Defendant: Yes.
The Court: Now as to the now second count, that count of rape, how do' plead to that count, guilty or not guilty?
The Defendant: Guilty, your Honor.
The Court: You are pleading guilty to the now second count for the reason that you are guilty of having done what the State charges you with having done?
The Defendant: Yes, sir.
The Court: Now I think under the statute we have to have a bit of evidence.
Mr. Dekker: I think there should be evidence, your Honor, then I would like to make a short remark prior to sentencing about the sentencing.
The Court: All right.”
Having accepted the plea of guilty to the charge of kidnapping in the first degree, the court, pursuant to the provision of the statute which now appears at K. S. A. 21-449, heard evidence as to the circumstances of the offense.
The victim testified that about one o’clock in the morning of November 28,1958 the car in which she was riding with her husband and baby stalled. The defendant drove up and offered to assist. He and her husband then left her and the baby in the stalled car and drove to a friend’s home for help. Defendant returned shortly and told her that the friend’s car would not start either, and that her husband had sent him back for her and the baby. They got in defendant’s car. Instead of going to where her husband was waiting defendant drove out on a country road and stopped. He struck her several times and then raped her. In open court she identified defendant. She was not cross-examined.
Being before the court for sentence on the two charges, the court inquired of defendant if he knew of any reason why sentence should not be pronounced on each. As to each charge defendant replied—
“No, sir.”
Mr. Dekker then made a plea that a sentence of death not be imposed.
Mr. Goodwin announced that the state did not seek the death penalty.
The court then sentenced defendant on the kidnapping charge to confinement in the penitentiary for life (K. S. A. 21-449) and on the forcible rape charge to confinement in the penitentiary for not less than 5 years nor more than 21 years (K. S. A. 21-424), the sentences to run concurrently.
On May 17, 1968, defendant (hereafter referred to as petitioner) filed a motion for relief under K. S. A. 60-1507.
This motion stated that petitioner’s plea of guilty was coerced and that no appeal was taken because he was told by his counsel that if an appeal was successful the court and county attorney would see to it that he got the death penalty, and alleged—
“10. (a) That my plea of guilty was coerced, to keep from being hung, as advised by my counsel who was inadequate and ineffective and hostile toward me.
(b) That I was coerced out of an appeal on the same advice by inadequate and ineffective and hostile counsel, who informed me if I did appeal and was successful, I would be sure to get the death penalty on the new trial.
(c) That the Statute for kidnapping K. S. A. G. S. 21-449 (1957) Supp of G. S. (1949) is unconstiutional and counsel failure to advise that the law may be unconstitutional as applied in a jury trial makes petitioner conviction null and void.
(d) That the vast publicity by the newspapers, Radio and Television news broadcasts and comments would of prevented a fair jury trial, and counsel refused to ask for a change of venue, and that I had better plead guilty if I knew what was good for me.
“(e) I would like for the court to subpoena:
Att. John Dekker
800 Brown Building
Wichita, Kansas 67202”
On September 3,1968, the motion came on for hearing. The state was present by a deputy county attorney. There were no other appearances. After examining the files and records of the case the court made findings of fact reciting the substance of the proceedings had on January 27, 1959, above quoted. The court further found that in his motion petitioner made no claim of any coercion by any person to bring about his plea of guilty; that he listed no witnesses who would substantiate his claim of coercion, and that there was nothing in the record concerning the alleged publicity in connection with the crime to which petitioner had pleaded guilty.
As conclusions of law the court held that (1) a judgment of conviction of crime carries with it a presumption of regularity and one attacking it has the burden of proof and that such burden is not sustained by unsupported and uncorroborated statements; (2) a voluntary plea of guilty is a confession of guilt of the crime charged and legally is the most formal and binding confession possible and is not lightly to be set aside; (3) petitioners uncorroborated statements in his motion and failure to list any witnesses who would corroborate such statements are insufficient as a matter of law; (4) the choice not to appeal having been made by the petitioner, is binding on him; (5) the kidnapping statute is constitutional, and (6) in a 60-1507 proceeding, in the absence of evidence other than petitioner’s uncorroborated statements, it must be assumed that counsel fairly and fully advised him of his rights — including the right to appeal. The court held that the files and records of the case showed conclusively that petitioner was entitled to no relief, and judgment was entered accordingly.
On September 12, 1968, petitioner filed a motion for rehearing. It was denied on September 13.
Petitioner filed a notice of appeal, pro se, and a motion for appointment of counsel. Mr. Michael Jones, a member of the Wichita bar, was appointed to represent him on appeal.
Although the record on appeal lists seventeen statements of points — basically, only two contentions are made.
One is that the first degree kidnapping statute (K. S. A. 21-449), as applied to this case, is unconstitutional. The contention is this—
An essential ingredient of the provision of the kidnapping statute of which petitioner was convicted is the infliction of bodily harm to the victim. Here the bodily harm relied on was the act of forcible rape. In addition, petitioner also was convicted of forcible rape, and thus both convictions arose out of the same act — carnal knowledge of a female person. It therefore is argued petitioner was twice put in jeopardy for the same offense in violation of the fifth amendment to the federal constitution.
A similar contention was rejected in State v. Brown, 181 Kan. 375, 389, 390, 312 P. 2d 832, in which it was held (syl. 4) that where a defendant is charged with rape in one count and kidnapping in the first degree in another count, both growing out of one comprehensive plan, the defendant is properly charged under the statute with kidnapping in the first degree — there being no defect in the charge on the ground that rape supplied the element of bodily harm required in proof of kidnapping in the first degree. The rule was adhered to in State v. Ayers, 198 Kan. 467, 472 (syl. 2), 426 P. 2d 21.
As to this point petitioner’s contention is not sustained.
Petitioners other contention — although variously stated — is that he was denied a fair and adequate evidentiary hearing on his motion and that the court erred in finding that no claim of coercion was made and that he listed no witnesses to substantiate such claim.
Strictly speaking, we believe the court did misconstrue the allegations of petitioner’s motion, for it is quite apparent that he was contending that his plea of guilty was coerced by his counsel— Mr. Dekker — who also wrongfully advised him not to appeal, and that he wanted to prove such facts at the hearing on his motion by calling Mr. Dekker as a witness.
But, brushing aside all technicalities as to “imperfections” in petitioner’s motion and the reasons stated in the court’s findings and conclusions — we believe the question squarely presented amounts to this:
On this record — showing in detail the proceedings and allocution when petitioner in open court entered pleas of guilty in 1959 — is he entitled to an evidentiary hearing on the bare allegations of his motion to the effect that he pleaded guilty and did not appeal under coercion of his counsel?
On the record before us the answer must be “no”.
There is no occasion here to quote from our many recent decisions dealing with the force, effect and finality of a voluntary plea of guilty; with claims of inadequate and ineffective representation by counsel; with the rule that mere uncorroborated statements of a petitioner are insufficient to grant relief, and with the rules governing when an evidentiary hearing must be granted. Craig v. State, 198 Kan. 39, 40, 42, 422 P. 2d 955, is a good example.
We have set out verbatim the proceedings had on January 27, 1959, in order to show exactly what took place. They speak for themselves — and, among other things — show that petitioner was questioned in detail as to his pleas, that the charges had been discussed with his counsel, and that he was pleading guilty because he was guilty. In response to a question by the court his counsel stated that he had discussed with petitioner the charges, probable evidence, the possible outcome of a trial, and the possible sentence that might be imposed. Throughout the proceedings there was not the slightest hint or indication of “coercion” as now contended by petitioner. And, with respect to no appeal being taken — what was there to appeal from? As to the contention about publicity at the time — the record is completely silent on the matter. Further, the district judge who ruled on petitioner’s 60-1507 motion was the sentencing judge in 1959.
In the recent case of Boykin v. Alabama, 395 US 238, 23 L Ed 2d 274, 89 S Ct 1709, (June 2, 1969) the defendant had pleaded guilty to five counts of robbery. When the matter reached the Supreme Court of the United States the conviction was reversed because nowhere did it appear from the record that when the pleas were entered the court asked any questions of the defendant or that defendant had addressed the court. In other words, it was held that the conviction could not stand because the record did not disclose “that the defendant voluntarily and understanding^ entered his pleas of guilty”.
Just the opposite is true in the case before us: The record here affirmatively shows the pleas to have been voluntarily and understandingly made, and it is not to be impeached nine years later on the mere uncorroborated bald statements in petitioner’s motion. Our decision is not to be construed as completely foreclosing all inquiry into the facts and circumstances surrounding a plea of guilty — but under this record the court was fully justified in not granting an evidentiary hearing and in denying relief.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
This is an action to secure possession of and to quiet title to real estate. Procedural problems are involved.
To get to the heart of the matter it is necessary to detail the tortured course this litigation has taken.
January 8, 1964, plaintiff-appellant filed in the trial court her amended petition in ejectment, to quiet title and for damages against defendants-appellees. She claimed a remainder interest to approximately twenty acres of land in Wyandotte county by virtue of her great grandfather’s will and codicil admitted to probate in Missouri. Both of these instruments were attached to her petition.
February 19, 1964, appellees filed their motion to dismiss the action on the ground the petition did not state facts sufficient to constitute a cause of action. This motion was heard in May, 1964, both parties appearing by their attorneys. By letter dated June 11, 1964, the then trial judge advised counsel he was of opinion the motion to dismiss should be sustained. The judge stated in his findings the property was subject to Kansas law and that the codicil executed approximately eighteen years after the original will contained no reservations, restrictions or limitations of any kind. Parenthetically, it should be explained this finding disposed of appellant’s claim of remainder interest in the real estate. The judge also stated that “in addition” counsel for appellees had on that day exhibited two deeds "covering” the property in question, one deed dated in 1919 and a tax deed dated in 1947. The letter then directed counsel to “prepare journal entry in accordance with the Court’s findings as of June 12th” and return it to the court for signature. Thereafter counsel were unable to agree on the form of the journal entry of judgment and consequently a journal entry sustaining appellees’ motion to dismiss was not filed until March 12, 1965. This journal entry recited as grounds for the dismissal a finding that appellant’s petition did not state facts sufficient to constitute a cause of action. The journal entry did not mention that deeds had been exhibited. It does appear that appellees had furnished information concerning the deeds to appellant’s local counsel prior to their exhibition to the court.
Factual controversy exists between counsel as to the preparation and submission of proposed journal entries by each side but apparently the one finally signed by the trial judge was prepared by him and was not approved as to form by appellant’s counsel. It also appears appellant and her counsel had no actual notice of the signing and filing of this journal entry until at a later time, as we shall presently note.
Meanwhile, everyone proceeded as though appellant’s case had been dismissed on June 11, 1964. June 18, 1964, appellant filed her motion to vacate the order of dismissal made on June 11, 1964, and for a new trial. This motion was heard on August 21, 1964, and on September 2, 1964, was overruled. Journal entry embodying this order was filed on September 11, 1964. Also on that date appellant filed her motion for leave to file a second amended petition. This motion was overruled on October 9, 1964, but the journal entry embodying the denial order was not filed until March 12, 1965. In it the trial judge stated that under our present procedural code a motion to dismiss is treated as a motion for summary judgment.
On October 9, 1964, appellant filed her notice of appeal to this court, appealing from “the order of the court rendered and made in the above entitled action on the 11th day of September, 1964, whereby it was by the court decided and ordered that defendants’ motion to dismiss the above entitled matter should be sustained. . . .” Appellant did nothing further respecting this appeal with the result it was never perfected and was abandoned.
On February 8, 1965, appellant commenced an action against appellees in the United States District Court for the District of Kansas by the filing there of a petition which, except for jurisdictional requirements, was virtually identical with the first amended petition she had previously filed in state court. March 1, 1965, appellees responded in the federal court action by filing their motion to dismiss it on the grounds the petition did not state facts sufficient to constitute a cause of action and that the matter involved had been adjudicated in the district court of Wyandotte county, Kansas. This motion being denied, appellees on March 29, 1965, filed their answer incorporating therein the defenses asserted in their motion to dismiss and attaching thereto copies of the pleadings and the orders entered in the state court action. The copies so attached included the order filed March 12,1965, sustaining appellees’ motion to dismiss. Both parties then filed motions for summary judgment. Eventually the federal district court granted appellees’ motion for summary judgment, holding that res judicata foreclosed the federal court suit alleging the same cause of action over the same subject matter against the same parties.
Appellant then appealed the adverse decision to the United States Court of Appeals, Tenth Circuit. That court on January 25, 1967, affirmed the judgment of the federal district corut (Neagle v. Broolcs, 373 F. 2d 40), saying, among other things: “The District Court properly granted appellees’ motion for summary judgment on the ground of res judicata.” (p. 44.) Rehearing of this appeal was denied March 22, 1967.
Appellant then resumed her litigation in the Wyandotte county district court by filing on April 3, 1967, her motion
“. . . for an order to set aside and purge the record of the Journal Entry entered and filed herein on the 12th day of March, 1965, for the reason that such Journal Entry was an ex parte order approved and entered without notification as required by the laws of Kansas, was improper, illegal and invalid and for a further order entering a valid judgment in accordance with the letter written by the court on June 11, 1964, wherein the grounds for sustaining defendants’ motion were set forth.”
This motion was heard on June 16, 1967, and on appellant’s application was expanded to include the second journal entry filed on March 12, 1965, wherein appellant’s motion for permission to file a second amended petition was overruled. The amended motion was overruled by an order entered August 25, 1967. Appellant has now appealed from this latter order.
Appellant states her motion was based upon K. S. A. 60-260 (b), (4) and (6), which provide:
“On motion and upon such terms as are just, the court may reheve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: . . . (4) the judgment is void; . . . or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time. . . .”
It should be borne in mind this appeal from an order denying the motion for relief from the judgment brings up for our review only the denial order and not the judgment, the time for appeal from the judgment having long since expired.
Appellant contends the procedure employed in journalizing the June 11, 1964, order rendered it void. She points out the journal entry was never approved by her and was entered without notice to her, and states its entry was in violation of rules No. 49 and No. 50 of this court relating to procedure of district courts (G. S. 1949, 60-3827). These rules relied upon were superseded January 1, 1964, in connection with the enactment of our present procedural code, by rule No. 115 (194 Kan. xxv-xxvi; K. S. A. 60-2702) which provides:
“Notice of Rulings and Judgments. Whenever a judge shall make a ruling on a motion or application of any kind and there are affected parties who have appeared in the action but who are not then present, either in person or by their attorneys, if any, and who are not then in default, the judge shall also cause written notice of such ruling or decision to be mailed to such parties or attorneys forthwith. When a judge directs the entry of a final judgment against a party who is not then present, either in person or by his attorney, if any, and whose mailing address appears in the file of the proceeding or is readily available, he shall cause written notice of the general nature of the judgment to be mailed immediately to such party; but the failure to mail such notice, or the failure of the party to receive the same, shall not affect the validity of the judgment." (Emphasis supplied.)
Hence, under the applicable rule, the judgment complained of was a valid judgment. This rule is in accord with precedent. Int Olthoff v. Adams, 121 Kan. 39, 245 Pac. 743, a judgment was rendered by a city court judge contrary to a statutory time limitation imposed upon that court and in a collateral attack it was contended the judgment was void. This court held the entering of the judgment was merely erroneous but inasmuch as the court had jurisdiction of the parties and the subject matter of the action, the judgment was not void. The trial court here had jurisdiction of the parties and of the subject matter of the action, and its judgment was not void.
We have no precedent of our own for K. S. A. 60-260 (b) (6) but we may look to federal authority for its construction and application since it was lifted from rule 60 (b) of the Federal Rules of Civil Procedure. Such a motion is addressed to the sound discretion of the trial court, and upon appeal its action is reviewable only for abuse of discretion (see Erick Rios Bridoux v. Eastern Air Lines, 214 F. 2d 207 [CA, DC]). In 3 Barron and Holtzoff, Federal Practice and Procedure, Rules Ed., we find the following:
“The rule [rule 60 (5)1 was not intended as an alternative method of appellate review, nor as a means of circumventing time limits on appeal, except where compelling considerations of justice require that course. . . . The rule is not intended to provide a procedure by which to challenge a supposed legal error of the court, nor to obtain relief from errors which are readily correctable on appeal. . . .” (§ 1322.)
“Relief from a final judgment, order or other proceeding rests in the sound discretion of the court guided by accepted legal principles. . . . Equitable principles may be a guide in administering relief.
“The Advisory Committee [on the Rules of Civil Procedure] has referred to ‘the teaching of experience that courts will not permit technicalities to prevent them from remedying injustice.’ Laudable as is the goal of remedying injustice Rule 60 (b) requires the courts to strike a balance between that goal and the desire to achieve finality in litigation. The cases show that the courts have exercised their discretion under that rule with a scrupulous regard for the aims of finality. Thus they have held that the motion must be made within a ‘reasonable time.’ . . . The courts have been unyielding in requiring that a party show good reason for his failure to take appropriate action sooner. . . .” (§ 1323.)
“This broad language [of rule 60 (b) (6) authorizing relief for ‘any other reason justifying relief from the operation of the judgment’] gives the courts ample power to vacate judgments whenever such action is appropriate to accomplish justice. Of course, this power is not provided in order to relieve a party from free, calculated and deliberate choices he has made. The party remains under a duty to take legal steps to protect his interests. . . .” (§ 1329.)
In Consolidated Gas & Equipment Co. of America v. Carver, 257 F. 2d 111 (CA 10), we find this: “The rule [60 (&)] is neither a substitute for appeal nor a conduit through which to channel a collateral attack upon a judgment of a court of competent jurisdiction.” (p. 114.)
We believe the foregoing is sound for our purposes here.
The judgment from which appellant seeks relief in the case at bar was entered March 12, 1965. Concededly, on March 29, 1965, she had notice of this entry. She thus had adequate time within which to file notice of appeal had she desired to do so and she really does not contend otherwise. Actually she offers no sound reason or excuse for proceeding in the federal court or for failing to appeal in the state action. In her brief she says she “. . . proceeded in the federal court action for several reasons. First, the notice received by her of the filing of the improper state Court journal entries was so late as to effectively prohibit any proper post-judgment action. Secondly, the defendants’ Motion to Dismiss in the federal action was overruled. Thirdly, the defendant pleaded in its answer to the merits in the federal action. Fourth, the United States District Court assumed jurisdiction of the case and the subject matter of the action.”
Significantly, she fails to elaborate her first reason or to specify why she could not effectively protect her interest in the state court action and, from the record, we are unable to deduce any theory helpful to her. If her other three reasons have significance they only shore up the conclusion that she made a deliberate choice in commencing and maintaining the federal court action, hoping, of course, for a more favorable result than she had obtained in state court. Ry way of analogy we quote what the federal appellate court had to say on the same point there:
“Appellant contends that she was deprived of her right to appeal to the Kansas Supreme Court because she relied on the order of the United States District Court denying appellees’ motion to dismiss. She argues that the appellees’ answer and motion to dismiss filed in the federal court led (her) to believe that the action in the District Court was one of consequence’. Such petition is argumentative and without merit. Appellant selected her own forum when she commenced her quiet title action in the state court of Kansas. Having gambled and lost there she voluntarily abandoned the prosecution of her appeal when she filed her petition in the United States District Court. The federal courts are not alternate forums to supply procedural fencing’.” (Neagle v. Brooks, supra, pp. 42-43.)
The gratuitous statement of the trial judge that a motion to dismiss is treated as a motion for summary judgment may not have been wholly accurate as applied to the situation existing here (see K. S. A. 60-212 [b]) but the statement was nonprejudicial in the light of the real ground upon which the judge’s order was based.
Appellant further argues she has never really had a hearing on the merits of her claim, that she has never had her day in court, and has thus been deprived of her constitutional rights of due process. Her factual premise is simply not true. The trial court considered the allegations of her petition which contained the testamantary instruments under which she was claiming, and, right or wrong, determined a cause of action was not stated. She was heard on the merits (see K. S. A. 60-241 [b]). The federal appellate court fairly well demolished the same contention of Mck of due process she made there when it said:
“The record shows without cavil that the appellant was given a right to be heard at every stage of the proceedings in the state trial court; the Kansas statutes provided appellant with all the procedural processes necessary to protect her rights to present her cause to the proper state trial court, to complain of errors, and to seek an appeal in the highest court of the state. It would be repugnant to every rationale of constitutional law to hold that appellant may litigate her cause in one court or another, without restraint or limitation, until she is successful. It is inconceivable that the framers of the Constitution intended that due process of law required the federal courts to perform the work already accomplished by the state court and to assume jurisdiction over actions fully and finally determined in state trial courts.” (Neagle v. Brooks, supra, pp. 44-45.)
Appellant’s motion for relief was not made until more than two years after she had notice of the entry of the adverse judgment. Under the circumstances it can hardly be said to have been made within a reasonable time, as required, and the trial court so ruled. We cannot disagree and this alone might well sustain the trial court’s ruling. Moreover, appellant has made no showing of injustice or inequity to justify further litigation. About all she has shown have been procedural irregularities which have not prejudiced her cause. This case has now had extended hearings plus appellate review in two sets of courts. After all this protracted litigation we see no reason to prolong it. We hold the trial court did not abuse its discretion in the ruling complained of. The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
FatzeR, J.:
The plaintiff, Wm. E. Scott, commenced this action against Charles William Hall, to recover a money judgment for legal services rendered in a Kansas divorce proceeding. The action is based upon the property settlement and divorce decree entered in the case entitled Charles William Hall, plaintiff, versus Betty Arlene Hall, defendant, Wyandotte district court, which settlement and decree were before this court in Woodring v. Hall, 200 Kan. 597, 438 P. 2d 135. The plaintiff Scott was awarded judgment and the defendant Hall has appealed, and they are hereafter referred to as the plaintiff and defendant.
On December 1, 1966, the plaintiff, a member of the Ear of this state, filed his petition in the district court of Wyandotte County, which was in two counts. The first alleged the defendant’s indebtedness based upon the plaintiff’s representation of Mrs. Hall in the divorce action and of his negotiating a property settlement, contractual in nature, which provided that on April 17, 1962, the plaintiff was to receive as reasonable compensation for his professional services, the sum of $2,500. The second count alleged that on February 25, 1966, judgment was duly entered in the divorce action on matters concerning child custody and child support of the minor children of the Halls, wherein the defendant was ordered to pay the plaintiff the sum of $500 as an additional attorney’s fee for professional services rendered Mrs. Hall. The prayer was to recover the sum of $3,000 plus interest and costs.
The plaintiff’s praecipe directed the clerk of the district court to issue summons returnable according to law to the sheriff of Harris ■County, Texas, for services upon the defendant at his residence at 4846 Creek Rend, Houston, Texas.
Summons for personal service outside the state of Kansas as •authorized by K. S. A. 60-308, was issued by the clerk on December ■8, 1966, and personal service thereof, together with a copy of the plaintiff’s petition, was duly made upon the defendant by the sheriff ■of Harris County, Texas, at 1:00 p. m. on January 30, 1967, at the Raylor College of Medicine, Houston, and the sheriff’s verified return of the service of summons was duly filed in the office of the clerk of the Wyandotte district court.
On March 2, 1967, the defendant entered his special appearance ■challenging the jurisdiction of the district court, and moved the court to quash and dismiss all writs and processes issued against him upon the ground that it lacked jurisdiction of the subject matter and the person of the defendant, and that the summons was neither issued, served, nor returned in the manner provided by law.
On June 1, 1967, the district court, after hearing statements of ■counsel and examining the pleadings and documents in the court’s file and briefs submitted, overruled the defendant’s motion to dismiss the action for the reasons alleged.
Following the filing of the defendant’s answer on June 27, 1967, which admitted all the allegations of the plaintiff’s petition, except the amounts alleged to be due, the plaintiff filed his motion for summary judgment on the ground there existed no genuine issue as to any material fact in the action.
On October 31, 1967, the district court made findings of fact and conclusions of law, and those pertinent to this appeal are quoted in toto:
“FINDINGS OF FACT
“2. That on December 31, 1960, Charles William Hall, defendant herein filed his verified petition for divorce entitled Charles William Hall v. Betty Arlene Hall, No. 6760-B, District Court of Wyandotte County, Kansas, alleging inter alia that he had been a resident in good faith of the State of Kansas for more than one (1) year preceding the filing of his petition for divorce.
“3. That William E. Scott, plaintiff herein, represented Betty Arlene Hall in said divorce action and successfully negotiated a property settlement, contractual in nature, acceptable and agreeable to the parties, by the terms of which, Charles William Hall agreed to pay a fee of $2,500.00 to William E. Scott, as compensation for certain valuable and extensive professional services rendered to Betty Arlene Hall.
“4. That on April 17, 1962, said divorce action proceeded to trial and judgment, and the trial court therein found, inter alia, that:
(a) a settlement, contractual in nature had been reached acceptable and agreeable to both parties and their respective counsel, and that said contractual settlement should be incorporated in and made a part of the trial court’s judgment and decree;
(b) Charles William Hall and Betty Arlene Hall were residents in good faith of the State of Kansas and County of Wyandotte for more than one year next preceding the filing of the action for divorce and that the court had jurisdiction of the parties and the subject matter;
(c) William E. Scott should be allowed the sum of $2,500.00 as his attorney’s fee;
(d) the agreement and settlement of the parties to the divorce action, as set out in the court’s findings, are made a part of the judgment and may be enforced as a judgment or as a contract at the option of the defendant, Betty Arlene Hall.
“5. That sometime subsequent to the trial of said divorce action and prior to the filing of the Journal Entry of Divorce on June 19, 1962, Charles William Hall and Betty Arlene Hall affixed their respective signatures to page 5 of said Journal Entry under the words ‘Approved as to contractual and settlement matters included above.’
“6. That sometime in July, 1967 (sic), Charles William Hall procured an ex parte order granting him the custody of his minor children which order was attacked by Betty Arlene Hall and eventually set aside and custody of the children restored to Betty Arlene Hall; that thereafter on February 25, 1966, Charles William Hall, defendant herein, filed a motion in said divorce action, No. 6760, requesting credit or reimbursement on his child support payments. As part of the court’s finding and judgment:
“‘4. Plaintiff (Charles William Hall) be and hereby is ordered and directed to pay defendant’s attorney, William E. Scott, the sum of $500.00 at the rate of $30.00 per month beginning April 1, 1966, through the Clerk of this Court, in accordance with the findings of this Court.’
“7. William E. Scott, plaintiff herein, has not received, and Charles William Hall, defendant herein, has not paid to plaintiff, William E. Scott, any part of the $2,500.00 attorney’s fee prayed for in Count I of plaintiff’s petition.
“8. William E. Scott, plaintiff herein, has not received, and Charles William Hall, defendant herein, has not paid to plaintiff, William E. Scott, any part of the $500.00 attorney’s fee prayed for in Count II of plaintiff’s petition.
“9. That plaintiff, William E. Scott, has, at all times, performed and completed all the stipulations, conditions and agreements to be performed on his part, but that defendant Charles William Hall, has failed and refused, and still fails and refuses to perform his side although demand therefor has been duly made by plaintiff.
“10. That the reasonable value of the professional services rendered by plaintiff, William E. Scott, are in the sum of at least $3,000.00, and were so found by Judge Wm. H. McHale.
“11. That defendant, Charles Wiliam Hall, is indebted to plaintiff, William E. Scott, in the amount of $3,000.00.
“12. That on December 1, 1966, William E. Scott filed this action numbered 26128-B in the District Court of Wyandotte County, Kansas against Charles William Hall for the recovery of said $3,000.00 attorney’s fee.
“13. That at the time plaintiff filed his petition herein on December 1, 1966, defendant, Charles William Hall, resided and had his domicile at 4846 Creek Bend, Houston, Harris County, Texas.
“14. That defendant was personally served in Harris County, Texas with a summons and copy of plaintiff’s petition by the Sheriff of Harris County, Texas on January 30, 1967.
“15. That sometime after the trial of said divorce action, No. 6760-B, on April 17, 1962, Charles William Hall departed from the State of Kansas, and that since July 1, 1962, has not been physically present within the State of Kansas except to appear as a guest speaker at Pratt, Kansas on October 17, 1964, and has not transacted any business in Kansas since July 1, 1962.
“16. From December 30, 1959 to the present time, Betty Arlene Hall and the children of her marriage have continued to reside in the State of Kansas and have maintained their residence at 4448 Francis Street, Kansas City, Wyandotte County, Kansas.”
“Conclusions of Law
“3. That defendant, Charles William Hall, and his former wife, Betty Arlene Hall, lived in the marital relationship within the State of Kansas until April 17, 1962; that the defendant thereafter departed from the State of Kansas, and that defendant’s former wife, Betty Arlene Hall, has since April 17, 1962, continued to reside in the State of Kansas, and that by reason thereof, defendant, Charles William Hall, has submitted himself to jurisdiction in this action No. 26128-B under the provisions of K. S. A. 60-308 (b) (6).
“4. Defendant, Charles William Hall, has submitted himself to jurisdiction for ‘all obligations arising for . . . property settlement,’ which includes the attorney fee to plaintiff, William E. Scott.
“5. Said K. S. A. 60-308 (b) is procedural only and acts retrospectively, so that the process and service of process on Charles William Hall in this action No. 26128-B is effective to give this Court personal jurisdiction, even though said K. S. A. 60-308 (b) did not become a part of the law of Kansas until January 1, 1964, nearly a year and a half after Charles William Hall left Kansas.
“6. In personam jurisdiction over the person of the defendant, Charles William Hall, and the subject matter of this action was properly invoked under the provisions of K. S. A. 60-308 (b) (6), that process and service of process are in all respects proper and valid and are hereby approved; and that this Court has jurisdiction over the person of the defendant, Charles William Hall, and the subject matter of this action.
“7. That once the matter of jurisdiction over a person of Charles William Hall is determined, there remains no genuine issue as to any material fact and plaintiff is entitled to have his motion for summary judgment sustained.
“8. That plaintiff is granted judgment against the defendant, Charles William Hall, in the amount of $3,000.00, plus interest on $2,500.00 at 6% per annum from April 14, 1962; interest on $500.00 at 6% per annum from February 5, 1966; and the costs of this action.”
The defendant principally contends the provisions of K. S. A. 60-308 may not be applied retroactively to a cause of action arising prior to its effective date of January 1, 1964, and that the district court did not acquire jurisdiction over the subject matter of the action and person of the defendant to render a valid in personam judgment against him.
K. S. A. 60-308 (a) provides in effect that personal service of summons may be made upon any party outside the state, and if made upon a person domiciled in this state or upon a person who has submitted to the jurisdiction of the courts of this state, it shall have the force and effect of personal service of summons within this state. Subsection (b) relates to the process of submitting to jurisdiction, and the part here pertinent reads:
“Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits said person, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of said acts:
“(6) Living in the marital relationship within the state notwithstanding subsequent departure from the state, as to all obligations arising for alimony, child support, or property settlement under article 16, if the other party to the marital relationship continues to reside in the state.”
As indicated, the property settlement and divorce decree which form the basis of this action, were before this court in the Woodring case, wherein Charles William Hall acknowledged in writing his indebtedness to Flora M. Woodring, the mother of Betty Arlene Hall, in the amount of $3,766.40 for money lent by Mrs. Woodring from December 1, 1952, through April 3, 1962, for living expenses for Hall’s family while he was a student at Kansas University and the Medical Center in Wyandotte County, and the reader is referred to that opinion.
The property settlement and divorce decree awarded the plaintiff a judgment on April 17, 1962, for attorney’s fee in the amount of $2,500, which specifically provided for its enforcement either as a judgment or as a contract. (Petty v. Petty, 147 Kan. 342, 353, 76 P. 2d 850; French v. French, 171 Kan. 76, 81, 229 P. 2d 1014.) The plaintiff elected to enforce the judgment as a contract and filed the present action against the defendant. That contract was an enforceable cause of action on January 1, 1964, when 60-308 became effective and the district court, in approving service of summons upon the defendant in the state of Texas, did not give the statute retroactive application. In the Woodring case it was held:
“K. S. A. 60-308 (b) authorizing the entry of judgments in personam on personal service of summons outside the state in enumerated classes of cases, is not invalid in applying to claims for relief which arose before the effective date of the enactment of the statute, since the statute does ‘not extend either to destruction of an existing cause of action or to the creation of a new liability for past events’ but merely affects the method of procedure by establishing a new method of obtaining jurisdiction of the person of the defendant in order to secure existing rights.
“There is no vested right in any particular remedy or method of procedure, and while statutes generally will not be construed to give them a retroactive operation unless it clearly appears that such was the legislative intent, when a change of law merely affects the remedy or law of procedure, all rights of action will be enforceable under the new procedure without regard to whether they accrued before or after the change and without regard to whether the action has been commenced or not, unless there is a saving clause as to existing legislation. (Following Jones v. Garrett, 192 Kan. 109, 386 P. 2d 194.)” (Syl. «2, 3.)
The problem of obtaining in personam jurisdiction over nonresident defendants was effectively remedied in Kansas by the enactment of 60-308. The entire concept of jurisdiction, and the antiquated rule of Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, were changed by Internat. Shoe Co. v. Washington, 326 U. S. 310, 90 L. Ed. 95, 66 S. Ct. 154, 161 A. L. R. 1057, from which 60-308 had its antecedent source. The matter was fully considered by this court in Tilley v. Keller Truck & Implement Corp., 200 Kan. 641, 438 P. 2d 128, where it was held that the courts of Kansas may constitutionally render an in personam judgment against a nonresident defendant provided the defendant had the “minimum contacts” within the forum state. The point was also considered in the Woodring case, where it was held:
“In order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum state, he must have the minimum contacts enumerated in the statute, and whether due process is satisfied depends upon the quality and nature of the activities of the defendant, which must be determined on a case by case basis. Essentially the same factors which enter into the determination that K. S. A. 60-308 (b) authorizes the exercise of judicial jurisdiction are involved in deciding whether the exercise of jurisdiction is constitutionally valid.
“In determining whether a defendant’s activities have substantial connection with Kansas as to confer jurisdiction of the courts of this state over the person of a nonresident defendant under K. S. A. 60-308 (b), relevant inquiry is whether the defendant engaged in some act or conduct by which he may be said to have invoked the benefits and protection of the law of Kansas.” (Syl. ft 5, 6.)
The facts involved in this action are not in dispute. The defendant and his former wife lived in marital relationship in Kansas until April 17, 1962. While a resident of Kansas and a student at the Kansas University Medical Center, he caused the divorce action to be filed in the district court of Wyandotte County. Just prior to the conclusion of the proceedings in that case, he entered into a contractual property settlement wherein he agreed to pay the plaintiff part of the attorney’s fee in question. Shortly thereafter the defendant departed from the state of Kansas and acquired a Texas domicile where he has resided since 1962. However, his former wife and the children born to that marriage have continuously resided in the state of Kansas since that time. As indicated, living in marital relationship in Kansas forms an additional basis for in personam judgment against the leaving spouse as to all obligations arising for child support or property settlement as provided in Article 16, both of which are here involved. (60-308 [b] [6].)
Subsection (6) of 60-308 (b) is unique to Kansas procedural law and is not found in the procedural provisions of other states which have adopted the long-arm statutes. (Hopson, Divorce and Alimony Under the New Code, 12 Kan. L. Rev., 27-37.) The subsection appears to be based upon wrongs committed in the marital relationship while the defendant was domiciled in Kansas, and personal service outside the state is sufficient to support a personal judgment with respect to all obligations mentioned therein, even though the defendant has acquired a domicile in another state. The subsection requires that the party to the marital relationship other than the leaving spouse, continue to reside in Kansas. (4 Vernon’s, Kansas Statutes Annotated [Fowks, Harvey, Thomas], § 60-308, pp. 96, 97.) Hence, the plaintiff may enforce the contractual property settlement made in his favor since Mrs. Hall continues to reside in Kansas, and may likewise enforce the $500.00 additional attorney’s fee ordered paid by the defendant on February 25, 1966, since its allowance arose out of proceedings with respect to child support, which is specifically enumerated in the subsection.
We have considered, not overlooked, the case of Mroczynski v. McGrath, 34 Ill. 2d 451, 216 N. E. 2d 137, relied upon by the defendant. It is not in point. Illinois does not have a subsection similar to 60-308 (b) (6). (Smith-Hurd, Ill. Annot. Statutes, Ch. 110, § 17.) The case merely holds that the establishment of a marital domicile and the birth of a child in Illinois does not constitute the transaction of business within the meaning of the statute, and in an action brought by the incompetent son’s conservator against a foreign executor of his father’s estate to declare his will invalid, where the father had permanently left Illinois upon abandonment of his family over 25 years before his death, the trial court did not err in dismissing the action for lack of jurisdiction. (Woodring v. Hall, supra, p. 608.)
The foregoing conclusion makes it unnecessary to discuss the plaintiff’s contention that the defendant’s activities constituted the “transaction of any business” as provided in 60-308 (b) (1).
The defendant makes no objection to the adequacy of notice of the pendency of the instant action. He was properly served with summons in Houston, Harris County, Texas, and his contention that his activities and conduct were not sufficient “minimum contacts” to give the court jurisdiction over his person under 60-308 (h) (6) cannot be sustained. Considering the matrimonial domicile of the Halls and the quality and nature of the defendant’s activities, it may be said he invoked the benefits and protection of the laws of this state, and we have no hesitancy in concluding the district court did not err in rendering the in personam judgment against him (60-308 [b] [6]), and that judgment is affirmed. | [
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|
The opinion of the court was delivered by
Schroeder, J.;
This is a damage action for personal injuries claimed by the plaintiff to have been sustained when alighting from the defendant’s standing passenger train at its Hutchinson, Kansas, station. The first trial in June, 1967, resulted in a hung jury. The second trial in October, 1967, resulted in a jury verdict for the plaintiff in the sum of $61,000, upon which judgment was entered and from which appeal has been duly perfected, presenting the issues hereafter discussed.
On the 6th day of August, 1963, Treva Elliott (plaintiff-appellee) was sixty-three years of age and resided in McPherson, Kansas. She decided to take her three and one-half year old grandson, Timothy, for his first tain ride. She purchased a round trip ticket from McPherson to Hutchinson, and discovering the train would be late, telephoned Timothy’s mother to tell her of the delay. Timothy’s mother came to the station with her sister and snapshots were taken of the travelers. Timothy’s mother and aunt left before the train arrived.
When the defendant’s train No. 39, westbound from Kansas City, arrived at McPherson, Mrs. Elliott asked the ticket agent which car she and Timothy would be riding in, and upon being told, Mrs. Elliott snapped a picture of Timothy in front of the steps of the car they rode in as a memento of his first train ride. (This snapshot is presented in the record as plaintiff’s “Exhibit No. 2,” to which reference will hereafter be made.) After the picture was taken trainmen opened the door, placed a step stool on the platform and helped Mrs. Elliott and Timothy aboard the tain. Another lady, Mrs. Clinton Brown, with small children also boarded the train at McPherson.
After the train arrived at Hutchinson, the plaintiff and her grandson left their seats, went back to the vestibule, turned left and started down the steps to the station platform. Timothy was ahead of the plaintiff when she observed that the step stool was not on the platform below the bottom step of the car. She testified:
“Well, Timmy was far enough down ahead and I saw that he was going to take that step, and there was no step stool there and it was too far for him to step and — ”
Two trainmen were standing on the platform near the point where a step stool would normally have been placed. However, the record does not indicate the extent to which they were offering assistance to those departing from the tain. Thus, while the plaintiff was on the first or second step and Timothy was on the third or fourth, she reached out for Timothy, caught hold of him and pushed him back. In so doing the plaintiff was caused to slip and fall, sliding down the steps on her back, resulting in the injuries for which this suit is brought. Timothy did not fall and was still standing on the steps after the accident.
The steps of the railroad car in question were dry and there was no foreign material which caused her to slip and fall. The car was standing perfectly still.
The plaintiff waited in the depot at Hutchinson a short time and returned to McPherson on the eastbound train No. 40 with her grandson, Timothy.
At the close of the plaintiff’s evidence the trial court overruled the defendant’s motion for a directed verdict.
The defendant’s evidence disclosed that a conductor and a brakeman were standing on the station platform on either side of the car steps. The brakeman testified in his experience a step stool was always used to assist passengers to descend from the steps of cars of the type shown in plaintiff’s Exhibit No. 2 to the platform. A conductor who worked on train No. 39 west of Pratt on August 6, 1963, confirmed that he would always use a step stool for passengers getting on or off a car of the type shown in plaintiff’s Exhibit No. 2. Further evidence of the defendant disclosed the distance of the platform at Hutchinson to the bottom of the steps of passenger cars varies between eleven and fourteen inches, depending upon the type of car and the point on the platform where the car stopped. An agent-yardmaster for the defendant confirmed that a step stool should be used to assist passengers on and off cars of the type shown in plaintiff’s Exhibit No. 2.
A motion for a directed verdict at the close of all the evidence interposed by the defendant was overruled, and in due course the jury was instructed, its verdict returned, and judgment entered for the plaintiff in accordance therewith.
The Chicago, Rock Island and Pacific Railroad Company (defendant-appellant) hereafter referred to as the appellant, contends the trial court erred in denying its motion to dismiss at the close of the appellee’s evidence. This is a challenge to the sufficiency of the appellee’s evidence to make a submissible case for the jury. In ruling on a motion for a directed verdict, the court is required to resolve all facts-and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. (Williams v. Benefit Trust Life Ins. Co., 195 Kan. 579, 408 P. 2d 631; and Gardner v. Pereboom, 197 Kan. 188, 416 P. 2d 67.)
The same rule is applied where it is contended that a party is contributorily negligent as a matter of law. The question of contributory negligence is ordinarily a question for the jury and is to be determined by the court only when the facts are such that reasonable minds could not differ. (Cain v. Steely, 173 Kan. 866, 252 P. 2d 909; and In re Estate of Lloyd, 178 Kan. 572, 290 P. 2d 817.)
It is argued the appellee’s case was tried upon the theory that the appellant did not provide, at its station in Hutchinson, a step stool for the use of her three and one-half year old grandson to alight from the bottom step of the railroad car to the station platform; and that the appellee made no contention and presented no evidence or inference that a step stool was required for her. It is thus contended the appellee’s theory is based upon the premise that some violation of a duty to the appellee’s grandson constituted negligence toward her.
We shall ignore attempts made by the appellant to argue the weight of the evidence, or reasonable inferences to be drawn therefrom. Beyond this the appellant relies upon statements of the appellee to the effect that she was afraid her grandson was going to fall when she first saw there was no step stool and reached for him, and that if she had not reached for him she would not have fallen. On this evidence the appellant argues:
“Not one scrap of evidence appears in plaintiff’s case (not in all the evidence, for that matter) that a stepbox was needed, or any assistance was needed, by plaintiff, Treva Elliott, to alight from the car at Hutchinson. It must be kept in mind that this is an action based on negligence toward Treva Elliott, not Timothy Elliott; for a violation of a duty owed Treva Elliott, not Timothy. Timothy is not the plaintiff alleging an injury to him due to the absence of a stepbox. No evidence indicates, either directly or by inference, that Treva Elliott was injured while attempting to alight from the car step to the station platform because of die absence of a stepbox. The violation, if there was any, of a duty owed by defendant to a third person cannot be the basis of a claim by the plaintiff. Dye v. Rule, 138 Kan. 808, 28 P. 2d 758; Marldinger v. Railroad Co., 95 Kan. 69, 71, 147 Pac. 1132; 38 Am. Jur., Negligence, §18, p. 660.”
Basically, the appellant makes the same argument attacking the order of the trial court overruling its motion to dismiss the action at the close of the appellee’s evidence, as it does attacking the order overruling its motion for a directed verdict at the close of all the evidence. The appellant argues the evidence clearly demonstrates contributory negligence of the appellee which proximately contributed to her injuries.
The petition herein alleged the following acts of negligence by the appellant, which were the sole and proximate cause of the appellee’s injuries:
“1. Failure to warn passengers that the step stool was not in place to assist in their disembarking from the train;
"2. Failure to warn passengers that the distance from the bottom step to the platform was longer than could safely be taken without assistance;
“3. Failure to assist the plaintiff and her grandson in disembarking from the steps to the platform;
“4. Failure to assist the plaintiff in her act of preventing her grandson from falling off of the train;
“5. Failure to place a step stool at the bottom of the steps so as to assist the passengers in disembarking from the train;
“6. Failure to maintain the vestibule and steps in a safe condition so as to prevent passengers from slipping thereon.”
The appellant in its brief analyzes each of the allegations of negligence set forth in the petition and concludes, upon reviewing the evidence in the record with respect to each, that there was no evidence to disclose a violation of any duty on its part toward the appellee which was a proximate cause of her fall. Each point is analyzed in isolation and as such tends to support its theory.
In the “stop-camera” technique, used by the appellant to analyze the evidence, each motion of the appellee is somehow interrupted and carefully examined for the purpose of discussing the appellant’s obligations to the appellee, as distinct from its duties to her infant grandson. Of course, this method has no relation to the flow of events as they actually occurred or as they were presented to the jury.
The appellee tried this case on the theory that the appellant was negligent in failing to provide a step stool on the platform at Hutchinson for the use of her infant grandchild, or in the alternative, failing to assist the child in descending the steps. Pursuing the appellee’s theory we shall first consider the question of negligence and then the question of proximate cause.
The evidence concerning negligence was relatively simple. At McPherson the trainmen put down a step stool and helped the appellee and her grandchild get on the train. Appellee’s Exhibit No. 2 disclosed the height of the bottom step from the station platform in McPherson in relation to her grandson — it disclosed the top of the bottom step to be well above the knees of her grandchild standing at the step. In descending the steps at Hutchinson, the .appellee observed the step stool was not in place. Trainmen were •on each side of the steps, it is true, but there is no evidence that ■either of them saw the appellee or her grandchild descending the ■steps, or that they made any effort to assist the child. As a matter • of fact the testimony of the brakeman was that he did not recall the little boy at all. He further stated there were seldom more than one or two passengers getting off. From the testimony given by the appellee and the trainmen, the jury could reasonably infer that ■neither the conductor nor the brakeman saw the child, and that unless the appellee acted as she did, her grandchild could have been injured stepping from the bottom step to the platform. It should be noted the appellee and the child were steadily moving throughout the incident, which takes longer to describe than it took to ■ occur. Thus, the evidence and the reasonable inferences therefrom -were that the grandchild was going to step off unassisted by anyone, and the appellee, being aware the distance was too great for the ■ child without a step stool, took reflective action — she grabbed for him to prevent him from falling, became overbalanced, fell backward on the steps and was seriously injured.
From all the evidence, a step stool should have been used to assist passengers descending from the type of car shown in appellee’s Exhibit No. 2.
In the exercise of the highest degree of care, the circumstances of the particular case determine whether the employee of a carrier is under a duty to assist a passenger in alighting. The duty to assist a passenger in boarding or alighting from the conveyance may arise when the surrounding circumstances are such as to suggest to the employee of the carrier the necessity of assistance. (King v. Vets Cab, Inc., 179 Kan. 379, 383, 295 P. 2d 605.)
In King v. Vets Cab, Inc., supra, the court said:
“In Kennedy v. Railways Co., 114 Kan. 853, 221 Pac. 249, we held that the obligation of the carrier of a passenger continues not merely while the passenger is being received and carried, but also while he is leaving or alighting from the conveyance, and imposes upon the carrier an obligation to provide facilities for alighting from the conveyance without danger, where the facts .and circumstances demand such facilities and assistance.” (p. 383.)
Another case dealing with the duty of care toward passengers is Haas v. Street Railroad Co., 89 Kan. 613, 132 Pac. 195. The court there said in its opinion:
“. . . Proper care in this instance may have required the defendant to stop its car to receive and discharge passengers at a convenient point outside the limits of danger, or to provide a step, furnish assistance, or otherwise provide for the safety of passengers. It was a question for the jury in this case, in the circumstances shown, whether such precautions to avoid accident were reasonably necessary, and whether proper care was exercised by the company.” (pp. 620, 621.) (Emphasis added.)
Upon the foregoing law and the evidence adduced at the trial, the trial court properly left for jury determination the question whether the appellant was negligent in failing to provide a step stool on the platform at Hutchinson for the use of the infant, or in the alternative, failing to assist the child in descending the steps.
The appellant contends its employees in the exercise of the highest degree of care toward passengers surely were not bound to anticipate the impulsive, sudden and erratic action of the appellee in grabbing for Timothy, particularly when she was still near the top steps and Timothy was half way down. It argues no pronouncements of the courts have been found espousing that trainmen be possessed of clairvoyance in order to perform the appellant’s legal duty to passengers.
The question whether there is such an identity of interest between an infant non sui juris and its lawful custodian that the omission of a duty owing to the child, which results in injuries to the custodian who attempts to prevent or mitigate injuries to the child arising from the omission, can be the basis of an action for negligence by the custodian, is one of first impression in this jurisdiction.
It is well settled the custodian of an infant non sui juris has the duty to use reasonable care to protect the child against known ,hazards. That is, the conduct of the custodian to use reasonable care must be measured in relation to the age and intelligence of the infant under the particular circumstances involved.
In 38 Am. Jur., Negligence, § 207, it is said:
“Since an action brought by a parent in his own right to recover for an injury sustained by his child through the negligence of the defendant can be defended successfully upon the ground that the negligence of the parent contributed materially and proximately to tire injury, . . . the question whether the care exercised by a parent for the safety of his or her child was such as to constitute negligence is important in many cases. . . . It is the duty of parents and custodians of children who are non sui juris to use reasonable care to protect them against known hazards. . . .” (pp. 892, 893.)
Under the foregoing rule the appellee as custodian of an infant of tender years had a positive duty to protect the child against known hazards. Here the appellee was suddenly confronted by circumstances which conceivably gave rise to alternative methods to protect the child in her custody. In 38 Am. Jur., Negligence, § 194, it is said:
“. . . The law recognizes the fact that a prudent man, when brought face to face with an unexpected danger, may fail to use the best judgment, may omit some precaution he might have taken, and may not choose the best available method of meeting the dangers of the situation. It does not charge him with contributory negligence for the fact alone that he makes a mistake in the method adopted to escape a peril which exists not through his fault, but through the negligence of another. Although the plaintiff may not have taken the safest course, he may yet recover for injuries sustained, if he can show that he was required to act suddenly, in an emergency, without opportunity for deliberation. . . .” (p.875.)
The foregoing rule was followed in this jurisdiction in Schulz v. Chicago, Rock Island & Pac. Rld. Co., 167 Kan. 228, 205 P. 2d 965. There the court said:
“. . . As we have heretofore indicated the record discloses sufficient evidence to sustain recovery against the appellants based on their own negligence. It also reveals testimony which warrants the conclusion Schulz was confronted with sudden, unexpected danger which well might have influenced his judgment and conduct. The rule in this jurisdiction is well established that in such a situation one who, by the negligent act of another, is placed in a position of danger which requires immediate and rapid action, without time to deliberate as to the better course to pursue, is not held to the strict accountability required of one situated under more favorable circumstances and is not guilty of contributory negligence as a matter of law if he does not exercise the greatest prudence or best judgment or choose the wisest or safest course in attempting to avoid the perils of the situation with which he is suddenly confronted. . . .” (p. 236.)
In applying the foregoing rule the failure of the appellee to adopt one of the possible alternatives suggested by the appellant to mitigate the hazardous situation created by its negligence, did not, as a matter of law, establish contributory negligence by the appellee, and the issue of the appellee’s contributory negligence was properly submitted to the jury.
A case in point is Clark v. Famous Shoe & Clothing Co., 16 Mo. App. 463 (1885). There an action was predicated on the negligence of the defendant in leaving a hatchway open on a public sidewalk. The plaintiff fell into it while attempting to rescue her four year old daughter, who had slipped on the sidewalk and had fallen in front of the open hatchway. The defendant claimed on appeal the plaintiff’s evidence disclosed she was guilty of contributory negligence. In affirming the lower court’s judgment for the plaintiff it was said:
“. . . If plaintiff, walking along this sidewalk alone, had by inadvertence fallen in to this opening, it might, perhaps, have been conclusive proof of negligence on her part. Yet who can justly say, that because in her anxiety for her little child, who was or whom she deemed to be in immediate danger, she went one step too far, or slipped, or disregarded those precautions which under other circumstances she might or ought to have taken, she was guilty of such negligence as to debar her of all redress.” (pp. 465, 466.)
Another case in point is Loyd, et al. v. H. & St. Joe. R. R. Co., 53 Mo. 509 (1873). There the court said:
“. . . Whilst it may be the law, that a passenger, who jumps from a train when in motion, takes the risk of injury to life or limb, it does not follow that the plaintiff in this case could be expected, whilst standing on the steps of the car, and after her child three years old had been lifted out, to have the presence of mind to deliberate on the propriety of following her child although the train immediately commenced to move, nor had she time to reflect on the danger of a straightforward movement at right angles to the train, instead of inclining in the direction the train was moving.” (pp. 513, 514.)
The appellant relies on cases for the proposition that the violation of a duty owed to a third person cannot be the basis of a claim by the appellee. (Citing, Dye v. Rule, 138 Kan. 808, 28 P. 2d 758; and Marklinger v. Railroad Co., 95 Kan. 69, 147 Pac. 1132.) These cases are distinguishable upon their facts and are not in point with the case at bar. Here neither the appellee nor her grandchild was a “third person” within the meaning of the rule asserted by the appellant. Here the appellee at all times material stood in loco parentis to her grandchild. Under these circumstances the applicable rule is:
"... A parent in the immediate control of a child of tender years who is too young to be capable of exercising any self-reliant care for its own safety is responsible for its preservation from hazards, and it is the parent’s duty to watch over such child and to guard it from danger. In such case, the parent may be regarded in a sense as a repositary of a trust to nurture and protect his offspring. . . .” (39 Am. Jur., Parent and Child, § 46, pp. 669, 670.)
A child non sui juris was ejected from a train for nonpayment of fare in Braun v. Northern Pacific Ry. Co., 79 Minn. 404, 82 N. W. 675 (1900). There the child’s father voluntarily left the train to be with the child. The Supreme Court of Minnesota in its opinion said:
“. . . The reason for the rule that the expulsion of the child operates as an expulsion of the parent is the same, whether applied to a case where the child may be lawfully and rightfully removed, or to a case where such removal is wrongful. The reason for the rule is found in the laws of humanity and nature. It is the parent’s duty to care for and protect his child. There is an inseparable bond of unity between them. And to hold where the child is forcibly removed and ejected from a railroad train in a strange city, among strangers, whether rightfully or wrongfully, the act of the parent in following the child is purely voluntary on his part, and that such removal of the child is not in effect the removal of the parent, would do violence to the sacred relations existing between parent and child. ... In such case the departure of the parent from the train is not voluntary in the sense that it is of his own choosing or of his own free will. On the contrary, the act of the railroad company in removing the child is the inducement, the cause, and it would be unreasonable to say that under such circumstances the parent left the train of his own free will. So we conclude that the ejection of a child of tender years from a raihoad train for the failure of the parent in charge of and accompanying the child to pay its fare, whether rightful or wrongful, is in effect the ejection and removal of such parent. Gibson v. East Tenn., V. & G. R. Co., 30 Fed. 904.” (p. 410.)
Negligence is the absence of care according to the circumstances. Negligence involves a relationship between man and his fellows. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. In every instance, before an act is said to be negligent, there must exist a duty to the individual complaining, and the observance of which would have averted or avoided the injury. The plaintiff who sues his fellowman sues for a breach of duty owing to himself. The victim does not sue derivately, or by right of subrogation, to vindicate an interest invaded in the person of another.
One who drives at a reckless speed through a crowded city street is guilty of a negligent act, and therefore, of a wrongful act irrespective of the consequences. It is wrongful in the sense that it is unsocial, but wrongful and unsocial to other travelers only because the eye of vigilance, sometimes referred to as the prudent person, perceives the risk of damage. If the same act were to be committed on a speedway or a racetrack, it would lose its wrongful character. The risk reasonably 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. 1, 6.)
To repeat, negligence is the absence of care according to the circumstances.
By reason of the foregoing authorities, which we find persuasive, and the circumstances presented by the evidence in the instant case, we hold the omission of the appellant herein to provide assistance for the safe descent of the infant grandchild of the appellee from the steps of the railway car to the station platform was, in effect, the omission of a duty owed to the appellee.
Was the negligence of the appellant the proximate cause of the appellee’s injury and damage?
It is not a necessary element of negligence that one charged with it should have been able to anticipate the precise injury sustained, but the negligence charged must have been the proximate or legal cause of the injury, and a determination of the proximate cause is ordinarily a question for the jury.
There are many definitions of the term “proximate cause,” but one of the most widely quoted defines the proximate cause of an injury to be that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the injury would not have occurred. It has been said the proximate cause of an injury is that which naturally leads to, and which might have been expected to be directly instrumental in, producing the result. In testing whether a negligent act is the proximate cause of an injury it is said the injury is the proximate result of negligence only where the injury is the natural and probable consequence of the wrongful act. Natural and probable consequences are those which human foresight can anticipate because they happen so frequently they may be expected to recur. It has also been said that it must appear the injury was anticipated or that it reasonably should have been foreseen by the person sought to be charged with liability.
The foregoing statements on proximate cause and the authorities supporting them are found in Rowell v. City of Wichita, 162 Kan. 294, 176 P. 2d 590.
Speaking of proximate cause in Kroll v. Railroad Co., 106 Kan. 294, 187 Pac. 661, the court said:
“. . . The prudence and foresight required are those of the hypothetical reasonably prudent man. If, however, the conduct under investigation concern navigation, reasonable prudence of a landlubber is not enough. Prudence must be relative to the obligation of the person who must take forethought. . . .” (p.298.)
Based upon the evidence presented by the record herein, the jury was warranted in finding the failure of the appellant to assist the appellee’s grandson in disembarking from the steps of the railway car to the platform of the station in Hutchinson, Kansas, constituted the omission of a duty owed to the appellee which was the proximate cause of the appellee’s injury and damage.
The appellant contends it was error for the trial court to deny its motion for judgment notwithstanding the verdict.
A special question was submitted to the jury as follows:
“If you find the defendant was negligent, then please state the act of negligence.” (Emphasis added.)
and the jury answered:
“From Instruction No. 17, under Treva Elliott, the act of negligence was ‘Failure to assist the plaintiff and her grandson in disembarking from the steps to the platform.’ ”
By reason of the foregoing answer to the special question, the appellant contends it was exonerated of all other acts of negligence charged by the appellee. This argument is based upon the proposition that where the defendant in an action for damages for personal injuries, founded on negligence, is charged with various acts of negligence, and the jury in answer to a special question submitted specifies the act or acts of negligence of which it finds the defendant guilty, the defendant is absolved from all alleged acts of negligence not included in the answer. (Walls v. Consolidated Gas Utilities Corp., 150 Kan. 919, 96 P. 2d 656; Jones v. A., T. & S. F. Rly. Co., 148 Kan. 686, 85 P. 2d 15; and Rasing v. Healzer, 157 Kan. 516, 142 P. 2d 832.)
On this premise the appellant argues: “The evidence is conclusive on the point that neither Treva Elliott nor her grandson, Timmy, had reached the bottom step of the car, at which point the jury said in answer to its special question the defendant was negligent in failing to- assist Treva Elliott and her grandson in ‘disembarking from the steps to the platform.’ Thus, the answer by the jury to the special question establishes the fact that the trainmen did not help Treva Elliott and her grandson from the bottom step to the platform, but the' evidence further establishes that at the time of this accident, Treva Elliott and her grandson had not reached the place where they could be so helped, and the defendant therefor was not negligent in failing to assist them. That being the sole act of negligence upon which the jury verdict was predicated, it entitles the defendant to judgment notwithstanding the verdict of the jury.”
While the general proposition of law upon which the appellant relies may be conceded, it has no application to the situation herein.
The trial court by instruction No. 17 recited six specific acts of negligence attributable to the appellant, which the appellee claimed proximately caused her injuries. The special question, prepared by the appellant, was submitted to the jury by the court. It is to be noted that the question was carefully phrased in the singular.
Of the six specific acts of negligence set forth the jury selected No. 3, heretofore quoted, as the answer. The jury came as near answering the very limited question as it could have under the circumstances. There would have been no injury except for the failure of the appellant to assist the plaintiff and her grandchild, in some manner, as they alighted from the steps of the railroad car to the platform. The jury properly found there was a total failure to assist the appellee and her grandchild during the entire disembarkation process, and this was the negligence it found which proximately caused her injuries as defined in instruction No. 17. It is noted all of the specific acts of negligence alleged in the petition, except one, referred to assistance in some form or manner.
The identical point was presented to this court in Muhn v. Schell, 196 Kan. 713, 413 P. 2d 997. There a similar situation arose and the jury answered the limited question posed. In the opinion the court said:
“The appellant suggests that it is axiomatic in Kansas that a special finding that a defendant committed a certain act or acts exonerates him from all other acts charged. There is a place for the application of the rule (Jones v. A., T. & S. F. Rly. Co., 148 Kan. 686, 85 P. 2d 15). However, we do not believe there is any place for its application here. Perhaps the question asked by the defendant was more objectionable than the answer given.
“. . . We are inclined to the opinion that the jury came as near answering the very limited question as it could have under the circumstances. It was not asked for the negligent act or acts which constituted wantonness. It was asked for the wanton negligence which was the direct cause of the injury. There would have been no injury except for the improper right turn, although other contributing factors tended to infer wantonness.” (pp. 717, 718.)
The appellant complains the trial court erred in giving instruction No. 16 to its prejudice.
Instruction No. 16 reads:
“The duty imposed upon common carriers to exercise the highest degree of care for the safety of their passengers, includes an obligation to provide facilities and assistance for alighting from the conveyance without danger where the facts and circumstances require such facilities and assistance.”
Briefly stated, the appellant’s position is that the phrase “without danger” used in instruction No. 16, in effect, placed it in the position of being an insurer of the appellee’s safety.
Apparently, the appellant accepts instruction No. 15 as a correct statement of the law, no objection having been made. There the jury was specifically instructed that a common carrier is not an insurer of the safety of its passengers. Thus, even conceding instruction No. 16, standing alone, might be subject to the construction placed upon it by the appellant, instruction No. 15 eliminated the objection. Instructions given to a jury are to be construed together, and as such they fully informed the jury of the limitation on the appellant’s liability to the appellee. We do not think the appellant was prejudiced by instruction No. 16 given to the jury.
The appellant next contends the doctrine of emergency submitted to the jury as instruction No. 18 was erroneous.
The instruction given is the standard “emergency” instruction taken verbatim from PIK 8.81. The appellant contends the evidence failed to disclose an emergency which would justify the charge to the jury; that the pattern instruction itself is erroneous because it fails to charge that the emergency must have been one that was real, not merely possible, inconsequential, imaginary or speculative; and that the emergency must have been created by the negligence of the appellant.
The evidence, heretofore discussed, discloses substantial and credible evidence to support the emergency instruction. The position of the appellee and her grandson on the steps of the railway car as they were moving to disembark, and the appellee’s state of mind as to the emergency as she conceived it and reported in her testimony, were sufficient to authorize the trial court to submit the emergency instruction to the jury.
The appellant’s contention that the pattern instruction itself is erroneous because it fails to charge that the emergency must have been one that was real, not merely possible, inconsequential, imaginary or speculative, confuses the law applicable under the doctrine of sudden emergency with the “rescue doctrine.” (See Holle v. Lake, 194 Kan. 200, 398 P. 2d 300.) The appellee does not rely upon the “rescue doctrine.”
The appellee, as custodian in loco parentis of her three and one-half year old grandson, was confronted with the hazardous situation in which her grandchild was placed through the negligence of the appellant. This, in effect, was a hazardous situation suddenly confronting the appellee. Under these circumstances the jury could find the appellee was not guilty of contributory negligence because she may have made a mistake in the method adopted to alleviate the peril which existed through no fault of hers — that she was required to act suddenly, in an emergency, without opportunity for deliberation. Under the circumstances, instruction No. 18 correctly states the law as applied to the evidence in the case at bar, and it was not erroneous for the trial court to give the instruction.
Upon a careful review of the record, we cannot say the appellant was prejudiced by any of the rulings made by the trial court in this action.
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The opinion of the court was delivered by
Fromme, J.:
Virgil C. Osman died from coronary insufficiency during working hours on October 30, 1962. The district court granted a workman’s compensation award to his dependent wife. The employer appeals.
The sole issue presented is whether there was substantial evidence to support the finding that a causal connection existed between the death and the work Mr. Osman was doing shortly before he died.
The deceased had been employed by the City of Wichita at the water filtration plant as a maintenance mechanic. For more than a week before his death he had been repairing a large cone valve weighing several tons. His wife had noticed he appeared tired and nervous in the evenings. He had no history of heart disease and he appeared to feel well when he began the day’s activities on the day of his death. When he arrived at the plant he was assigned to do grinding work inside the huge cone valve. This work was done with an electric grinder which weighed four or five pounds. While working he sat inside the valve and operated the grinder at shoulder height by pressing it against the inside surface of the valve. Moderate physical activity was required. Mr. Osman operated the grinder for thirty to forty minutes. Other workers in the plant noticed Mr. Osman was pale and didn’t look well. He took a coffee break and at this time complained of a real bad pain in his chest. In about thirty minutes he returned to his work. Later a fellow worker noticed Mr. Osman was sitting in the valve with the grinder idle in front of him. He complained of being cold and asked for help in getting out of the valve. At this time he had a purple or blue look about his face. After taking another rest he assisted a fellow worker in the unloading of copperas. This consisted of lifting half of a hundred pound sack and carrying it several feet. After unloading ten of these sacks he left and went to the rest room. Thirty minutes later Mr. Osman was found on the floor of the rest room. His body was cold. His face appeared purple or blue in color. No heart beat or breathing could be detected. Pie was pronounced dead on arrival at a hospital. The cause of death listed on the death certificate was coronary insufficiency. No autopsy was performed and the exact location or nature of his physical breakdown was not determined.
It should be noted in this case the claim arose October 30, 1962. The legislative change with reference to heart cases (K. S. A. 1968 Supp. 44-501) does not apply to claims arising prior to July 1, 1967. (Pratt v. Seis-Tech Exploration Co., 199 Kan. 732, 735, 433 P. 2d 555; Lyon v. Wilson, 201 Kan. 768, 773, 443 P. 2d 314.) We are not concerned with whether the exertion precipitating this death was more than the workman’s usual exertion in the course of his regular employment. Prior case law will be controlling in this case.
This court has previously held that coronary occlusion, coronary thrombosis, cerebral hemorrhage, thrombosis or hemorrhage, or acute heart failure which results in death of a workman is a personal injury by accident which may arise out of and in the course of his employment so as to be compensable. (See Pingston v. Rice Motor Co., 180 Kan. 295, 303 P. 2d 197 and cases cited therein at page 300.)
We have said if a workman’s physical structure, whatever it may be, gives way under the stress of his usual labor, his death is an accident which arises out of his employment. (Bohanan v. Schlozman Ford, Inc., 188 Kan. 795, 366 P. 2d 28.) This statement of law was recently iterated when a workman’s death was caused by a vascular accident resulting in a coronary occlusion. (Meyers v. Consolidated Printing & Stationery Co., 201 Kan. 806, 443 P. 2d 319.)
In the present case two medical experts testified in response to hypothetical questions. Their testimony was inconclusive as to the causal connection, if any, between death from coronary insufficiency and the work Mr. Osman was doing. The inconclusiveness of their testimony may be explained in part by claimant’s failure to have an autopsy performed on the body.
One doctor testified there was no causal connection in his opinion. On cross-examination he explained that he subscribed to what he considered a majority view among heart specialists that physical activity preceding a heart attack had no causal connection with the resulting death. He stated there were other heart specialists who held an opposite view.
The second doctor stated there may have been a causal connection but without an autopsy he would not say that a causal connection existed.
The medical testimony indicated that coronary insufficiency occurs when the coronary arteries, those which supply blood to the muscles of the heart, fail to carry adequate circulation to the heart muscles. Circulation is impaired or shut off for some reason. This results in damage to a certain amount of the heart muscle. If sufficient damage occurs to the heart muscle, the heart quits beating and death ensues. It is generally true the heart requires a greater blood supply when a person engages in physical activities.
In Hanna v. Edward Gray Corporation, 197 Kan. 793, 421 P. 2d 205, this court reviewed medical testimony which, standing alone, was inconclusive. In Hanna we said:
“Perhaps it has been a reluctance of the courts to thrust upon victims of industrial accidents the uncertainties of medical science that has led to the rule which permits consideration of lay testimony, together with the testimony of expert medical witnesses, to resolve issues in workmen’s compensation cases relating to the injury of workmen and the causal relation of such injury to the employment.” (p. 802.)
This court held in Hanna that lay testimony in the record was sufficient to support the trial court’s decision finding a causal connection between the work the claimant was doing and his death from a coronary occlusion.
Causal connection may be inferred in the present case by considering only that testimony most favorable to upholding the district court’s award. The workman had no previous history of heart disease. Outward signs of physical distress appeared while he was engaged in the physical activity of his work. He complained of a bad pain in his chest. The purple or blue color which appeared on his face indicated the circulation of blood had been impaired. His death occurred while at work and within thirty minutes after he had helped another workman unload hundred pound sacks of copperas.
It was the function of the district court to weigh both the medical and the lay testimony. There is a basis in this evidence for the district court to find the decedent suffered an accidental injury arising out of and in the course of his employment and that there was a causal connection between the work Virgil C. Osman was doing and his death.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
A. M. Shepard filed this action to obtain specific performance of a contract to convey a 400 acre farm in Labette county, Kansas. Curtis N. Dick and Edith Mae Dick answered seeking cancellation of the contract. They alleged the consideration for the sale was so grossly inadequate it shocked the conscience and the contract was procured by fraud, coercion and overreaching on the part of plaintiff.
A trial was had to the court. Specific performance was denied. Cancellation of the contract was decreed and plaintiff has appealed.
The findings upon which the judgment rests are set forth in the journal entry as follows:
“. . . [T]he Court further finds that during tihe time of the contractual relationship of the parties, defendant Curtis N. Dick was incapacitated both physically and mentally and incapacitated to transact business and that plaintiff had knowledge of both the physical and mental incapacity of Curtis N. Dick; that defendants had no independent advice as to the fair market of said farm nor a fair opportunity to seek such advice and were uninformed; that the consideration involved herein is so greatly and grossly disproportionate to the actual value of said farm that the same offends against fair dealings; that the inadequacy of consideration being accompanied by inequitable incidents showing bad faith such as concealment, misrepresentation and overreaching and undue advantage by plaintiff of the ignorance and incapacity of defendants created a marked inequality of plaintiff against defendant Curtis N. Dick; that the contract is not fair and just; that defendants were entitled to rescind said contract and the Court finds generally in favor of defendants and against plaintiff.”
Plaintiff questions the admission of evidence and the sufficiency of the evidence. A recitation of facts gleaned from the evidence is necessary. The evidence favorable to the prevailing party below will be considered on appeal. (See 1 Platcher’s Kansas Digest (Rev. Ed.), Appeal and Error § 496.)
The farm in question was purchased by the Dick family in 1935 for $8,000. Curtis N. Dick farmed the land from 1936 to 1965. He was a single man and lived alone on the farm. Edith Mae Dick, his sister, taught school for many years in Perry, New York. She was an elderly maiden lady and spent portions of her summer vacation on the farm with her brother. Mr. Dick became ill in July 1965. Miss Dick quit teaching at that time and began caring for her brother.
In September 1965 Curtis N. Dick executed a joint tenancy deed conveying the farm to himself and Edith Mae Dick as joint tenants with right of survivorship.
In May 1966 plaintiff Shepard sold his 480 acre farm. On May 31 he was delivering bills advertising a sale of his farm machinery. He stopped at the Dick farm. After some preliminary conversation he began negotiating with Mr. Dick and Miss Dick to buy their farm. Curtis N. Dick was not feeling well and was lying down most of the time Shepard was there. Shepard first offered $12,000 for the 400 acre farm. After continued negotiation plaintiff was successful in getting Mr. Dick to price the farm at $20,000. The plaintiff said he would buy it and voluntarily raised the price to $21,000 to cover sale expenses. On June 2 Shepard returned to the farm and took Curtis and Edith Dick to an attorney in Oswego where a real estate contract and deed were drawn up and executed. The attorney was not familiar with the land. He testified he was not representing any particular party to the contract. The deed and contract were placed in escrow with the First National Bank of Oswego, Kansas, along with an earnest money payment of $1050. The balance was to be paid upon approval of the abstract and delivery of the deed.
On June 9 Curtis and Edith Dick notified the bank they intended to cancel the contract and they asked for a return of their deed. On June 14 Shepard paid the balance due and requested delivery of the deed. The bank continued to hold the deed and the money subject to the order of the court.
After suit was filed Curtis and Edith Dick acknowledged tender of the entire purchase price and agreed that the final payment be returned to Shepard. The plaintiff filed his petition and Mr. Dick and Miss Dick filed a joint answer.
Pending trial of the action the defendant Curtis N. Dick died. Plaintiff filed a suggestion of death upon the record in court as contemplated by K. S. A. 60-225 (a) (2). No further pleadings were filed and the matter proceeded to trial. Further facts will be developed as we examine plaintiff’s specifications of error.
Plaintiff contends it was error to admit and consider evidence of the mental incapacity of Curtis N. Dick. Plaintiff states any unfair dealing, coercion or fraud affecting Curtis N. Dick’s part in this contract was not a determinative issue in the case after his death. Plaintiff reasons the entire fee title to the farm passed to Edith Mae Dick under the provisions of the joint tenancy deed. She jointly executed the contract and is limited to her separate defense, inadequacy of the consideration. It is noted the defendants filed a joint answer to the petition and joined in all allegations in defense against plaintiffs action. We believe that plaintiff misconceives the nature of his suit. An action for specific performance of a real estate sale contract is directed toward the enforcement of the contract. The contract is the basis for the action. The action is an equitable one which rests in the judicial discretion of the court and depends upon all the facts surrounding the execution of the contract.
In Shoop v. Burnside, 78 Kan. 871, 98 Pac. 202, it is said:
“Specific performance is not a matter of right but of equity, and rests in the sound legal discretion of the court. Before the relief will be granted the contract must appear to have been entered into with fairness and without any undue advantage or imposition, and the facts and circumstances must be such as appeal to the conscience of the court and compel its discretion.” (Syl. f 1.)
This rule of law has been consistently applied by this court in specific performance cases. (See In re Estate of Davis, 171 Kan. 605, 612, 237 P. 2d 396; Malir v. Maixner, 174 Kan. 26, 254 P. 2d 282; Wetzel v. Hattrup, 174 Kan. 244, 255 P. 2d 637; Roberts v. Coffey, Administrator, 198 Kan. 695, 426 P. 2d 30.)
The death of a party pending an action for specific performance of a real estate contract does not terminate the obligations and duties arising from such a contract. These may be enforced against the heirs, executors and assigns of the parties. (See Roberts v. Coffey, Administrator, supra, and In re Estate of Goff, 191 Kan. 17, 379 P. 2d 225.) The contract remains subject to the same infirmities and defenses which existed prior to the death of the party.
Generally when the death of a party occurs pending trial of an action to specifically enforce a realty contract no amendment of pleadings is required. Additional parties affected on death may be substituted. When the pleadings already state the cause of action or defense against a substituted party no additional pleading is necessary. The substituted party, if any, assumes the prosecution or defense of the action at the point where the original party left it, assuming the burdens as well as the benefits. (39 Am. Jur., Parties § 101, p. 972; 67 C. J. S., Parties § 89, p. 1085; 149 A. L. R. Anno. p. 829.) We perceive no reason why the rule should be different if the party succeeding to the interest of a deceased party is already a defendant in the action. (See K. S. A. 60-225 (a) (2).)
If a contract is induced by unfair dealing, coercion or fraud the death of the person coerced or defrauded does not eliminate inequities which are inherent in the contract. Evidence of the mental incapacity of Curtis N. Dick and any unfair dealing practiced against him was properly admitted and considered by the trial court.
The evidence introduced at the trial indicates Curtis N. Dick was eighty years old at the time. His sister was several years younger than he. He was suffering from arteriosclerosis which caused a lack of blood supply in the brain and resulted in confusion and hallucinations. He had been treated by Dr. Henderson at intervals of two or three weeks for over three years. His sister had taught school in New York for thirty-four years and had returned to the farm less than a year before. The contract was negotiated May 31 and executed June 2. Curtis N. Dick was treated by Dr. Henderson on May 3, 13, 20, 27 and June 3. On the two latter dates he was confused, forgetful and was having hallucinations. The doctor testified Mr. Dick was disoriented and in no condition to take care of his personal matters on those dates.
A second cousin to Edith and Curtis Dick testified to Mr. Dick’s mental condition on the afternoon before the contract was negotiated by plaintiff. After visiting a short time with this second cousin Curtis Dick became confused. He asked how many brothers and sisters he had. He did not recognize his sister Edith.
The court’s finding that Curtis Dick was incapacitated both physically and mentally to transact business was supported by substantial relevant evidence.
Plaintiff next contends there was no substantial evidence to show inadequacy of consideration and that inadequacy of consideration alone is not sufficient to deny specific performance of a contract for the purchase and sale of land.
A consideration to be adequate to support an action for specific performance of a contract for the sale of real estate does not have to be the full equivalent of value. A consideration may be considered inadequate only when it is so disproportionate to value as to offend the normal sense of fair dealing which should characterize business transactions.
In Greenwood v. Greenwood, 96 Kan. 591, 152 Pac. 657, the court said:
“In an action for specific performance the term ‘adequate consideration’ does not mean the full equivalent of value. It means a consideration which is not so greatly disproportionate to value as to offend against the fair dealing which should characterize business transactions.” (Syl. f 3.)
In the case at bar a real estate broker who had been engaged in the real estate business in that community for eight years testified as to the value of the land. He walked over the land and looked at the various fields. He assigned separate values to the cultivated land, the pasture land, the timber land and the farm buildings. He valued the whole farm at $63,975. The consideration for the sale was less than one-third of this value. The plaintiff introduced no evidence of fair market value.
Plaintiff did introduce evidence of possible soil conservation expense such as terracing and removal of timber. Such future expense would not change the fair market value of the land. These future expenses might be incurred to improve and benefit the land. In such case the fair market value could be expected to increase.
Inadequacy of consideration alone is not ground for recision of a contract unless the consideration is so disproportionate to value as to amount to fraud. (Baron v. Lyman, 136 Kan. 842, 18 P. 2d 137.) Something more is necessary before specific performance will be refused. (Sutherland v. Sutherland, 187 Kan. 599, 358 P. 2d 776.) However, overreaching and undue influence brought to bear in obtaining a sale of property for an inadequate consideration will justify refusal of a decree of specific performance and will authorize cancellation of the contract for fraud. (Shoop v. Burnside, supra.)
Plaintiff specifies the court erred in refusing admission of photographs of the farm. The photographs were offered after testimony by the plaintiff that they were true and accurate reproductions of ten different locations on the farm showing patches of timber, undergrowth, lack of drainage and certain buildings. Pictures which are properly identified as true and accurate reproductions of a subject matter in evidence and which are relevant to the issues are generally admissible in evidence. Relevant evidence means evidence having any tendency in reason to prove any material fact. (K. S. A. 60-401 [6].)
Where conditions of premises are relevant, as when the value of land is in controversy, photographs are admissible in evidence. (Hamilton v. Railway Co., 95 Kan. 353, 148 Pac. 648; State v. Emery, 201 Kan. 174, 440 P. 2d 613.)
The photographs offered were merely corroborative of testimony by plaintiff’s witnesses as to the need of conservation practices on this farm. Plaintiff’s witnesses testified fully concerning the bad features of the farm. These bad features of the farm were considered, no doubt, by the real estate broker in fixing the fair market value.
The erroneous exclusion of evidence is not prejudicial where the facts are otherwise shown. (See 5 Hatcher’s Kansas Digest (Rev. Ed.), Trial §64.) A party seeking reversal because of exclusion of evidence has the burden of showing prejudice as well as error in the ruling excluding such evidence. (Osborn v. Lesser, 201 Kan. 45, 439 P. 2d 395.) No prejudicial error is shown.
Appellant cites Baron v. Lyman, supra, and states recision of an executory contract will not be decreed where the other party cannot be restored to his original status. The rule stated is sound. The •change of position which plaintiff mentions in support of this contention is failure to sell some of his farm machinery at his farm sale. No reason appears why a later sale of this machinery could not be held. Notice of recision was promptly given and no material change •of position appears in the record before us.
No prejudicial error appears in the admission or exclusion of evidence at the trial. There is substantial evidence in the record to .support the trial court’s findings.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Feomme, J.:
Thomas Eugene Yohe was convicted by a jury on two counts of forgery (K. S. A. 21-608) and on two counts of passing a forged check (K. S. A. 21-609). He is serving sentences as an habitual criminal.
Two alleged trial errors are urged in this appeal.
His first specification of error is insufficiency of the evidence. This general contention is made without specifying any particular element of the crimes which was omitted from the evidence.
We review the evidence and find no merit in this contention.
The defendant and a friend, James Ward Wylie, arrived in Ottawa, Kansas, on January 17 with seventeen dollars between them. They made a tour of the taverns in Ottawa. Their funds ran low and the conversation turned to the fine art of check-writing. Each of them related some of his experiences in this mutual avocation.
Mr. Wylie testified against the defendant so the record contains a detailed account of their activities on the afternoon and evening of January 17.
The defendant and Wylie discussed their need of money and decided they would like to leave Ottawa and go to Great Bend. It was agreed that Wylie should pick up a few counter checks of the First National Bank of Ottawa and purchase a writing pen. The defendant suggested they buy a good pen so they wouldn’t “mess up”. Mr. Wylie bought a pen at the dime store and picked up the blank checks. It does not appear from the record that the quality of the pen had anything to do with defendant’s present incarceration.
These two friends returned to the Budweiser Tavern. Mr. Wylie went to the men’s room where he filled in a couple of the blank checks. The checks were made payable to Jim Wylie. The name Charles E. Barker was signed as maker. Then the two friends proceeded to go shopping together. The defendant purchased some clothing and shoes. Mr. Wylie also acquired some clothing. The checks were tendered in payment. They were accepted. The two shoppers then rented a room at the hotel. They registered in the name of Jim Warren and brother. While in the hotel another check blank was filled in payable to Jim Wylie. The name of Charles E. Baker was inserted as maker. They resumed their shopping and accumulated more clothing and cash.
Their anticipated trip to Great Bend had to be postponed indefinitely when police officers arrested them in Ottawa. At the trial which followed, the testimony of defendant’s former friend was supported by the testimony of the clerks who sold the items of clothing. One of the clerks testified the defendant was wearing a pair of shoes at the trial which the clerk had furnished defendant during the shopping tour.
The defendant argues that the evidence of his guilt is circumstantial and insufficient because no one saw him sign or pass the forged checks.
The testimony at the trial established that Wylie forged, endorsed and passed these checks. However, it is clear that defendant was present and gave advice and aid to his friend Wylie. The defendant counseled with Wylie in the planning stages. He accompanied Wylie when the criminal acts were committed and he knowingly shared in the fruits of the crimes.
K. S. A. 21-105 provides:
“Every person who shall be a principal in the second degree in the commission of any felony, or who shall be an accessory to any murder or other felony before the fact, shall upon conviction be adjudged guilty of the offense in the same degree and be punished in the same manner as herein prescribed with respect to the principal in the first degree.”
Our statute removes any common-law penalty distinctions for participating in a crime as an accessory before the fact or as a principal in the second degree. An accessory before the fact and a principal in the second degree are guilty of the offense and are to be punished the same as the principal in the first degree. Similar statutes are quite common. (See Von Patzoll v. United States [C. A. 10 Okla.], 163 F. 2d 216, cert. den. 332 U. S. 809, 92 L. Ed. 386, 68 S. Ct. 110; 21 Am. Jur. 2d, Criminal Law § 124; 22 C. J. S., Criminal Law § 86.)
In State v. Jackson, 201 Kan. 795, 443 P. 2d 279, we upheld a conviction for forcible rape. The defendant did not actually engage in any sexual act with the victim. His presence and assistance to another was held sufficient to support the charge. He aided and abetted in the commission of the offense and was guilty of the charge as a principal in the second degree.
In the present case the evidence clearly established that defendant participated in the plan and the accomplishment of these criminal acts. He was present throughout and knowingly participated therein. He was adjudged guilty of the offense based upon substantial competent evidence and should be punished the same as a principal in the first degree. The fact that he did not fill in the checks and hand them to the sales clerks did not mitigate his guilt or prevent his conviction and punishment for forging and passing forged checks.
Defendant’s final specification of error concerns testimony of the cashier of the First National Bank of Ottawa. The cashier testified the bank records contained no account in the name of either Charles E. Barker or Charles E. Baker. Defendant contends the bank records were the best evidence of their contents and the cashier’s testimony was inadmissible. In support thereof he cites a portion of-K. S. A. 60-467 (a) (6) as follows:
“(a) As tending to prove the content of a writing, no evidence other than the writing itself is admissible, except as otherwise provided in these rules, unless the judge finds . . . (6) that calculations or summaries of contents are called for as a result of an examination by a qualified witness of multiple or voluminous writings, which cannot be conveniently examined in court, but the adverse party shall have had a reasonable opportunity to examine such records before trial, and such writings are present in court for use in cross-examination, or the adverse party has waived their production, or the judge finds that their production is unnecessary."
We note this section is prefaced by the phrase, “As tending to prove the content of a writing”. The citations which defendant urges upon the court relate to instances where proof is directed toward the contents of a writing.
In the present case the testimony was not to prove contents of a writing. The testimony was to prove nonexistence of a particular account. Proof of nonexistence of a particular account does not require production of all the books and records of a bank. In such case the best evidence rule does not require a voluminous display of bank records in court. A proper method of proving the nonexistence of a certain record or account is to question the custodian-of the records after he has examined them. He may then testify a certain account does not appear in his records.
In State v. Phillips, 175 Kan. 50, 259 P. 2d 185, we said:
“. . . We do not always require the production of voluminous records. Followed out to its ultimate end, the result of defendant’s argument would be that the fact that defendant had not been a student of either one of these schools could only be proved by bringing to court all the records of the school. That is not the rule. . . .” (p. 55.)
(See also 29 Am. Jur. 2d, Evidence §449; 32A C. J. S. Evidence §790.)
The name of the cashier of this bank was endorsed on the information as required by statute. The defendant had ample opportunity to interview the cashier prior to trial. He could have cross-examined this witness at the trial. The testimony of the cashier was properly admitted in evidence.
The record on appeal has been carefully examined. There is substantial evidence in the record for a reasonable inference of guilt on all charges. We find no prejudicial trial errors. The judgment is affirmed. | [
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|
The opinion of the court was delivered by
Fatzer, J.:
The appellee asks for rehearing and clarification of the decision of the court previously rendered reversing this appeal. (Casebeer v. Alliance Mutual Casualty Co., 203 Kan. 425, 454 P. 2d 511.) We have examined the record, the former opinion, and the arguments and authorities cited in support of the motion for rehearing, and upon consideration by the court, it is denied.
The appellee’s request for clarification of our former opinion with respect to the manner of computing statutory interest on the judgment awarded the appellant, is granted.
In our former opinion reversing the appeal, the district court was directed:
“[T]o sustain the plaintiff’s motion for summary judgment, and compute the amount due the plaintiff in accordance with 44-512a, together with the statutory interest, and to credit such total amount with the amount of the eight drafts mailed by Alliance to the plaintiff on November 16, 1967.” (1. c. 436.)
The plaintiff’s petition alleged his statutory demand was served upon Alliance May 13, 1967. Alliance had twenty days thereafter, or until June 2, 1967, in which to pay all compensation then due and unpaid. (K. S. A. 44-512a.) Alliance concedes the amount of compensation due the plaintiff on June 2, 1967, totaled in the sum of $8,398.79, and that it failed and refused to pay the same. That was the amount due the plaintiff when the district court considered his motion for summary judgment.
Statutory interest should be computed on the sum of $8,398.79 from June 2, 1967, to November 16, 1967, when Alliance paid the plaintiff $5,725.24, and interest should be computed on the remaining unpaid balance of $2,673.55 from November 16, 1967, until paid. (K. S. A. 44-512a, 16-201; Fleming v. National Cash Register Co., 188 Kan. 571, 363 P. 2d 432.)
Fromme, J., dissenting: The clarification requested was necessary and was properly granted, but the motion for rehearing should have been granted.
Schroeder, J., joins in the foregoing dissent. | [
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|
The opinion of the court was delivered by
Fromme, J.:
The Wichita City Teachers Credit Union brought an action against John Rider to recover a balance of $909.73 on a promissory note, plus punitive damages. In defense to this claim the defendant John Rider set up his discharge in bankruptcy entered on March 16, 1965. In reply the plaintiff credit union alleged that the indebtedness fell within the statutory exemptions to discharge in that said indebtedness was the result of a wilful and malicious conversion of mortgaged property but, if the liability was discharged, the debt was revitalized after discharge by an express promise to pay the same.
Prior to the present appeal by plaintiff a trial to the court was had and a judgment was entered in favor of plaintiff in the sum of $909.73 together with interest. Notice of an appeal and notice of a cross-appeal were filed in the district court, but because of subsequent proceedings in that court the appeal and cross-appeal were never docketed in this court. They appear to have been abandoned.
A motion for relief from the judgment together with an affidavit was filed by defendant under K. S. A. 60-260. The affidavit stated that certain evidence introduced at the trial was false as shown by records in the court of common pleas. These records concerned a replevin action brought by plaintiff against the defendant.
The court set this motion for hearing, considered evidence concerning the records in the replevin action, and, after giving the plaintiff a full week to submit any additional evidence, set aside the original judgment for plaintiff and entered judgment in favor of defendant for costs.
The first judgment was filed on August 11, 1967. That judgment was set aside and judgment was entered for defendant on December 12, 1967. The present appeal by plaintiff is from the judgment in favor of defendant entered on December 12.
An involved factual background must be developed in order to understand the various procedural and substantive questions raised on this appeal.
On November 7, 1962, defendant and his wife borrowed $2740.00 from plaintiff and executed a security instrument covering their 1959 Chevrolet station wagon, a refrigerator and eight other items of household furniture and appliances.
In July 1964 the station wagon and refrigerator were disposed of by defendant. The record does not indicate the circumstances under which this occurred or the amount received therefor. The station wagon was traded to a car dealer for a pickup truck.
In August 1964 the defendant and his wife filed a voluntary petition in bankruptcy. The plaintiff filed a claim in bankruptcy based upon the note and security instrument claiming an indebtedness due of $1,779.70. An order was obtained by the trustee abandoning the property described in the security instrument to the bankrupt.
On November 30, 1964, plaintiff filed a replevin action in the court of common pleas to recover the property described in the security instrument. All property except the car and refrigerator was located and sold. The proceeds were applied on the indebtedness. The value of the car and refrigerator as set in the affidavit for replevin totalled $909.35. When these items could not be located judgment was entered for that amount. The defendant and his wife were working for Cessna Aircraft Company and garnishments were issued on the judgment but no payroll check of the defendant was ■ever garnisheed. Several of his wife’s checks were garnisheed but later released. On April 12, 1965, the defendant paid the amount ■of the judgment ($909.35). It was satisfied and released. The balance on the note and security instrument remaining unsatisfied after payment of the judgment was $909.73.
On March 16, 1965, defendant received a general discharge in bankruptcy and the order of discharge was not qualified or limited by the bankruptcy court. The present action to recover the balance of indebtedness due on the note ($909.73) was filed on July 15, 1966.
The plaintiff on appeal questions the authority of the trial court to set aside the original judgment and enter judgment for defendant four months after the original judgment was filed. During the original trial to the court the plaintiff introduced evidence that defendant’s paycheck was tied up by garnishment in the replevin action and that defendant promised to execute a new note if plaintiff would release his paycheck. There was oral testimony that pursuant to defendant’s promise the garnishment was released, and then the defendant refused to sign a new note.
On motion to review the judgment the records in the replevin action were examined by the trial court. These records showed that defendant’s paycheck was never reached by the garnishment and that the judgment was satisfied by payment in full on April 12, 1965. The defendant has continually denied making an express promise to make a new note, but it is apparent the promise which the court originally found was made by defendant was conditioned upon the plaintiff releasing a garnishment against defendant’s paycheck. The records in the replevin action established the condition was never performed. There was no garnishment on defendant’s paycheck and none was released. Based upon this evidence the court set aside the judgment for plaintiff and entered judgment for defendant.
The Code of Civil Procedure introduced a new concept into our law governing the effect of terms of court upon the authority of a court over its judgments. The expiration of a term of court in no way affects the power of a court to do any act or hear any proceeding in a civil action pending before it. (K. S. A. 60-206 [c]; Gard, Kansas Civ. Proc., § 60-206 [c].)
K. S. A. 60-260 introduced change in the law respecting the review and correction of judgments. The text of this statute was taken largely from the Federal Rules of Procedure. (3 Barron and Holtzoff, Federal Practice and Procedure [Wright] § 1321 to 1332, inch) The rule is broadly phrased and many of the itemized grounds for relief are overlapping. (Laguna Royalty Company v. Marsh, [C. A. 5th 1965], 350 F. 2d 817, 823.) The rule is designed to permit the desirable legal objective that cases may be decided on their merits, and it must be given a liberal construction to prevent miscarriage of justice. (Radack v. Norwegian America Line Agency, Inc., [C. A. 2d 1963], 318 F. 2d 538, 542.) The recognition of the court’s power to reexamine its ruling prior to docketing an appeal prejudices no one, and may facilitate the doing of equity which the rule contemplates. (Sleek v. J. C. Penney Company, [C. A. 3d 1961], 292 F. 2d 256.)
K. S. A. 60-260 (b) provides the motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment was entered. A motion to set aside a judgment in a non-jury case under 60-260 (b) (6), although filed after notice of appeal is served, is made within a reasonable time if it is filed and acted upon before the time the appeal from said judgment is docketed in the supreme court. (See McDowell v. Calebrezze, [C. A. 5th 1962], 310 F. 2d 43.)
Under the provisions of K. S. A. 60-206 (c) and 60-260 (b) (6) a trial court retains broad discretionary power to relieve a party from final judgment for any reason justifying relief from the operation of the judgment if such power is exercised prior to the time for docketing an appeal from the judgment in the supreme court.
We find no abuse of the court’s discretion under the circumstances of the present case.
The plaintiff complains because the trial court refused to find that the conversion of the station wagon and refrigerator was done wilfully and maliciously and that the indebtedness came within an exception to discharge in bankruptcy.
An order of discharge in bankruptcy operates generally on all debts listed unless the order is qualified or limited by the bankruptcy court. (8A C. J. S., Bankruptcy, § 552.) The order of discharge in bankruptcy in the present case was not qualified or limited by the bankruptcy court.
An order of discharge is a judgment and it is supported by the same presumptions which attach to any other judgment. It is conclusive evidence of all facts appearing of record or deducible therefrom by necessary inference and of the fact the bankrupt has been lawfully discharged from all of his provable debts save those specifically excepted by the statute. (Palmer v. Hussey, 119 U. S. 96, 30 L. Ed. 362, 7 S. Ct. 158; General Protestant Orphans’ Home v. Ivey, [C. A. 6th 1956], 240 F. 2d 239; see also cases collected 11 U. S. C. A. Bankruptcy, § 32, note 901.)
A discharge in bankruptcy shall release a bankrupt from all of his provable debts with certain exceptions set out in the Bankruptcy Act among which are liabilities for wilful and malicious injuries to property of another. (11 U. S. C. A. Bankruptcy, §35 (a) (2).)
The effect of bankruptcy discharge with regard to a particular debt may be determined by the state or federal court in which the discharge is pleaded as a bar to enforcement of a particular liability claimed. (Rees v. Jensen, [C. A. 9th 1948], 170 F. 2d 348; See also citations 11 U. S. C. A. Bankruptcy, § 35, note 440.)
In the present case plaintiff’s claim was scheduled and the security was abandoned by the trustee to the bankrupt. The discharge was properly pleaded and proven in the trial court and constituted a defense unless the conversion was wilful or malicious within the exceptions to the act.
In Davis v. Aetna Acceptance Co., 293 U. S. 328, 79 L. Ed 393, 55 S. Ct. 151, it was said:
“There is no doubt that an act of conversion, if wilful and malicious, is an injury to property within the scope of this exception. Such a case was McIntyre v. Kavanaugh, 242 U. S. 138, 61 L. ed 205, 37 S. Ct. 38, 38 Am. Bankr. Rep. 165, where the wrong was unexcused and wanton. But a wilful and malicious injury does not follow as. of course from every act of conversion, without reference to the circumstances. There may be a conversion which is innocent or technical, an unauthorized assumption of dominion without wilfulness or malice, [citations] There may be an honest, but mistaken belief, engendered by a course of dealing, that powers have been enlarged or in-capacities removed. In these and like cases, what is done is a tort, but not a wilful and malicious one. . . .” (79 L. Ed 397)
A conversion of property covered by a security instrument may be a wilful and malicious act within the meaning of the exceptions relating to discharge in bankruptcy, but whether a conversion is wilful or malicious within that meaning depends upon facts and circumstances attending and surrounding the conversion. (United States Fidelity and Guaranty Company v. Tanner, [Colo. 1968], 279 F. Supp. 396. See also 1-Collier on Bankruptcy [14th Ed.], p. 1599, ¶ 17.09.)
A discharge in bankruptcy constitutes prima facie proof of discharge of a listed claim under a security instrument and the burden is on the claimant to show any remaining liability thereon falls within one of the statutory exceptions to discharge.
Since there was a lack of evidence concerning the circumstances surrounding the conversion, except that the station wagon was traded for a pickup truck, the court had no basis on which to find that the conversion was or was not wilful or malicious. The claim ant in such case failed to sustain his burden of showing the defendant’s indebtedness was excepted from the discharge in bankruptcy. (See United States Fidelity and Guaranty Company v. Tanner, supra.)
The appellant asserts the debt if discharged in bankruptcy was revived by a new promise by the bankrupt to pay the debt.
In 1-Collier on Bankruptcy, p. 1756, ¶ 17.34, it is said:
“To be enforceable the new promise must be definite, express, distinct, and unambiguous. The debts covered by the new promise must be identified as those that were discharged in the bankruptcy proceedings. . . .”
“. . . Whenever the new promise is dependent upon a condition or contingency, this fact must be stated in the pleading and it must be averred and proved that the condition has been performed or that the contingency has happened.”
This court previously has spoken on this subject in Needham v. Matthewson, 81 Kan. 340, 105 Pac. 436, Robinson v. Jacobia, 115 Kan. 36, 221 Pac. 1113, and in Commodore v. Armour & Co., 201 Kan. 412, 441 P. 2d 815. In order to revive a debt discharged in bankruptcy by a new promise the claimant must establish an express promise to pay a specific debt and if the promise is made subject to a condition the claimant must show the condition was performed.
In the present case the records in the replevin action supported the trial court’s finding that the condition upon which the promise was made was not performed. There was no release of the garnishment of defendant’s wages. The judgment on which the alleged garnishment issued was satisfied by payment in full by the defendant.
Various other matters have been raised in this appeal. Some of these are in the nature of a collateral attack upon the order of discharge in bankruptcy and have no place in the present action. We have examined all fourteen points filed and served upon defendant as listed in the record. The brief of appellant contains only three numbered “issues and points relied on”. The statement of points on appeal were improperly consolidated, confused and commingled in the appellant’s brief. Some of the original points were abandoned without specific mention thereof.
We have carefully examined the entire record and no prejudicial error is found.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an action in mandamus to compel the State Auditor (defendant-appellee) to register a temporary note in the amount of $100,000.00, issued by plaintiff-appellant (Unified School District No. 259), pursuant to alleged authorization by electors at a special school district election on September 20, 1966. In refusing to register the note the State Auditor relied on Board of Education v. Powers, 142 Kan. 664, 51 P. 2d 421. Relying primarily on that case, the district court overruled plaintiff’s motion for summary judgment; sustained that of defendant, and filed a comprehensive memorandum opinion in which many cases dealing with the subject were reviewed. This appeal followed.
Dale W. Rruce, individually, in support of plaintiff, and George Stallwitz and James R. Schaefer, jointly, in support of defendant, were granted permission to appear as amici curiae and have filed helpful briefs.
At the time of the district court’s ruling, it is conceded the case was ripe for summary judgment.
Two questions are presented: (1) Under the facts, was the proposition misleading in that it failed to apprise the voters that the proceeds from the sale of bonds were to be used in connection with other funds? (2) Was the ballot at such election defective in that more than one proposition was submitted, which propositions were not separately numbered and printed and separated by a broad solid line Kth of an inch wide?
The facts are undisputed. They are gathered from the transcript of school board proceedings submitted with the note to the defendant, the pleadings, a stipulation of the parties, and several exhibits which were submitted with the motions for summary judgment.
Plaintiff district encompasses the City of Wichita and its environs. It is said to be the most populous school district in the state. It serves approximately 70,000 students in 113 attendance centers. It has an area of about 150 square miles and had an assessed tangible valuation in excess of 500 million dollars in 1967.
On July 1, 1965, plaintiff became the successor to School District No. 1, Sedgwick County, which had maintained a building fund levy pursuant to K. S. A. 72-1047, et seq. Upon the disorganization of School District No. 1, the unencumbered net balance in the building fund amounted to $1,203,627.81, which became an asset of plaintiff upon unification.
On July 1, 1965, plaintiff’s board adopted a resolution authorizing a capital outlay fund levy (said to be in effect the same as a building fund levy). The capital outlay fund, as provided in the resolution, was to be produced by a 3.938 mill levy for not to exceed five years. The unencumbered balance in the capital outlay fund on August 1, 1966, when the board initiated action on the bond resolution in question amounted to $1,800,876.11. On June 30, 1967, the fund had a net balance of $1,592,006.71.
In addition to the sums produced by the building fund levies, the record discloses that on August 12, 1966, $286,000.00 from federal funds were allotted to the use of plaintiff to aid in constructing and equipping vocational school facilities for the fiscal year 1966. It was stipulated that plaintiff’s board on August 1, 1966, knew of the forthcoming allotment of federal funds.
At a regular session of plaintiff’s board on August 1, 1966, the district superintendent discussed building needs of the district, set out in a report of the Citizens’ Planning Council for School Facilities. The estimated costs of needs described in the report ranged up to 30 million dollars. At this meeting the superintendent also reported to the board that federal funds in the amount of $286,000.00 for a vocational education building had been allotted and an additional $150,000.00 would probably be available. Following the discussion a motion to submit a proposition to the electors of the district to vote bonds in an amount between 15 and 18 million dollars was passed. The session was then adjourned to August 3, 1966.
At the adjourned regular session, on August 3, 1966, a motion was passed that the bond election include the areas designated under Priority No. 1 and No. 2 Projects, recommended by the Citizens’ Planning Council for School Facilities. The projects referred to totaled 14 in number and contemplated purchase or improvement of school sites and to construct, equip, furnish, repair, remodel or make additions to buildings and facilities used for school purposes by the district. The projects totaled 27 million dollars in estimated costs and ranged in cost per project from one-half to four million dollars each.
A resolution was then adopted declaring it necessary to issue bonds in accordance with the provisions of K. S. A. 72-6761 and directing the president and clerk of the board to cause notice of the election to be made in accordance with the provisions of K. S. A. 1965 Supp. 72-67,114 (/) (Repealed by Laws of 1968, Ch. 59, Sec. 45).
The ballot proposition contained in the resolution and submitted to the voters is as follows:
“Shall the Following be Adopted?
“Proposition to issue general obligation bonds of Unified School District No. 259 (Wichita), Sedgwick County, State of Kansas, in the amount of $15,-000,000 for the purpose of paying the costs to purchase or improve school sites or to construct, equip, furnish, repair, remodel, or make additions to buildings and facilities used for school purposes of Unified School District No. 259 (Wichita), Sedgwick County, State of Kansas, under the authority of K. S. A. 72-6761.
“To vote in favor of the bonds, turn down the voting pointer over the word ‘Yes’.
“To vote against the bonds, turn down the voting pointer over the word ‘No’.
“Yes □
“No Q” (emphasis supplied.)
The proposition carried and thereafter the board determined to issue the Temporary Improvement Note in question. The note and a transcript of the proceedings were presented to defendant for registration, as required by K. S. A. 10-108. Defendant referred the transcript to the attorney general for approval. The attorney general refused approval on the grounds that the transcript indicated a total cost of impovements in the amount of 27 million dollars; that the amount of estimated expenditures in excess of the authorized bond issue was to come from the balance of the previous building fund levy, receipts from the capital outlay fund levy, as well as from grants of federal money; and, therefore, under the decision in Board of Education v. Powers, supra, the election proposition did not fully apprise the voters and was misleading.
Although defendant’s refusal to register the note rested on the ground noted, the district court further held the ballot proposition defective because more than one proposition was submitted and not separately numbered and printed with one-eighth of an inch line separating the propositions as required by K. S. A. 10-120 of the general bond laws.
At this juncture we should note statutes pertinent to the proceedings under consideration. The board initiated the proceedings under K. S. A. 72-6761 which reads in pertinent part as follows:
“The board shall have authority to select a school site or sites. When a board determines that it is necessary to purchase or improve a school site or sites, or to construct, equip, furnish, repair, remodel or make additions to any building or buildings used for school purposes, or to purchase school buses, such board may submit to the electors of the unified district the question of issuing general obligation bonds for one or more of the above purposes, and upon the affirmative vote of the majority of those voting thereon, the board shall be authorized to issue such bonds. The board shall adopt a resolution stating the purpose for which bonds are to be issued and the estimated amount thereof. The board shall give notice of said bond election in the manner prescribed in section 10-120 of the General Statutes of 1949 or any amendments thereto and said elections shall be held in accordance with the provisions of the general bond law. . . .”
It is not disputed that the proposition or propositions submitted by the district fall within the authorization of 72-6761.
The election notice was drawn and published pursuant to the provisions of K. S. A. 1965 Supp. 72-67,114 (/) which reads:
“(/) Notice of any bond election of any unified district shall be made by one publication in a newspaper of general circulation in the unified district once each week for three (3) consecutive weeks, the first publication to be not less than twenty-one (21) days prior to such election before such election and not less than fourteen (14) days before such election. The notice shall state (1) the name of the unified district, (2) the date of the bond election, (3) the purpose for which the bonds are to be issued, (4) the amount of bonds to be issued, (5) the proposition to be voted upon, (6) the hours of opening and closing of the polls, (7) the voting place or places and the territory each voting place is to serve, (8) the amount and purpose of the bonds proposed to be issued, and (9) the address of the election headquarters of the officer or board conducting the election.”
This statute was repealed in 1968, but as to these proceedings it was in effect and controlling. (Masheter v. Vining, 198 Kan. 691, 426 P. 2d 149.) There is no complaint concerning the election notice or its publication except as to the form of the ballot proposition.
Roth plaintiff and defendant agreed on oral argument that K. S. A. 10-120, of the general bond law, controlled matters concerning the form in which propositions or questions were to be submitted on a ballot. However, amicus curiae Bruce points out that school districts, together with some other municipalities, are specifically exempted from the application of 10-120 by the terms of the statute itself. In what appears to be a contradiction of the exemption referred to, 72-6761 provides: “The board shall give notice of said election in the manner prescribed in section 10-120.”
This dilemma was laid to rest by our opinion in Masheter v. Vining, supra. Although we were dealing specifically with the possible effect on K. S. A. 10-120 of a 1949 amendment to what is now K. S. A. 64-102, we declared K. S. A. 1965 Supp. 72-67,114 (/) controlling as to notice of a bond election in a unified school district in September of 1965. (See Masheter v. Vining, supra, p. 693.)
Amicus curiae Bruce extends his contention by arguing that since the district is exempted from the application of 10-120, most of the cases cited by both plaintiff and defendant are of no aid in disposing of this appeal. Amicus curiae Bruce overlooks the fact that both 10-120 and 72-67,114 (/) deal with notice of elections. The problem here concerns the ballot proposition and is governed by K. S. A. 25-605 (now K. S. A. 1968 Supp. 25-605), which requires ballot proposition language and form in essentially the same terms as required by 10-120, with respect to separating propositions. Moreover, though the cases deal with various municipal bond authorization statutes and also different election notice statutes, the validity of ballot propositions are subjected to the same or similar test in each case. This is found to be true from an analysis of opinions of this court dealing with the subject, regardless of the class of municipality involved or the particular authorization and notice statutes under which proceedings were had. (See Heller v. Rounkles, 171 Kan. 323, 339, 232 P. 2d 225.)
We turn to cases which we believe to be decisive of the ballot proposition problem confronting us.
In what appears to be the first two cases (Lewis v. County of Bourbon, 12 Kan. * 186, and Leavenworth v. Wilson, 69 Kan. 74, 76 Pac. 400) dealing with the subject in this jurisdiction, the decisions rested on failure to separate propositions on the election ballot. However, in the Leavenworth case we find the principles enunciated and the reasoning set out which gave rise to the general rule consistently followed by this court in later cases. In Leavenworth it was said:
“. . . Since, therefore, no bonds may be issued for any purpose or for any set of purposes unless the people be consulted and give their consent, every voter must have a fair opportunity to register an intelligent expression of his will. . . .” (pp.77, 78.)
What became the general rule was succinctly stated by Justice Schroeder in the recent case of Wycoff v. Board of County Commissioners, 189 Kan. 557, 370 P. 2d 138:
“. . . The election law contemplates that when a special proposition is submitted to a popular vote, the recitals on the ballot shall clearly state the substance of the question the electors are to vote upon; and where that proposition is so obscurely stated that the electors may be misled thereby, the election is vitiated. (Leavenworth v. Wilson, 69 Kan. 74, 76 Pac. 400; Kansas Electric Power Co. v. City of Eureka, 142 Kan. 117, 45 P. 2d 877; and Board of Education v. Powers, 142 Kan. 664, 668, 51 P. 2d 421.)” (pp. 559, 560.)
Applying the foregoing rule to the case at hand, defendant argues the voters were led to believe they were voting on a 15 million dollar proposal whereas, in fact, the cost of the program contemplated by the district board amounted to an estimated 27 million dollars. Obviously, the proposition in failing to state the substance of the board’s program might mislead the voters. The proposition not only fails to state the estimated total cost but no mention is made that the bond receipts were to be used in conjunction with the proceeds of a building fund levy, a capital outlay fund levy and government grants. In short, the electors were invited to vote on a proposition with an indicated cost of $15,000,000.00; it is not suceptible of an interpretation that the cost of the program was to be $15,000,000.00 plus whatever building fund balances, future proceeds of building fund levies, and government allotments were available.
We believe the case of Board of Education v. Powers, supra, to be so factually similar as to control the issue presented here. As here, the action was brought in mandamus to compel the state auditor to register bonds presented to him by the board of education. The adopted resolution stated that it was necessary to build and furnish a new building at a total cost of $391,500; that the board had filed an application with a federal agency for a loan and grant amounting to forty-five percent of the total cost or $176,175.00, of which $162,343.00 could be used for constructing and furnishing the building; and that in addition to the $162,343 obtained by federal grant, it was necessary to issue bonds in the sum of $198,-500.00. The proposition read:
“ ‘Shall the Board of Education of the city of El Dorado issue bonds in the amount of one hundred ninety-eight thousand five hundred dollars ($198,500) for the purpose of erecting a school building?’ ” (142 Kan. p. 665.)
The question presented on appeal was whether the ballot clearly stated the proposition in substance. It was observed in the opinion that the proposition standing alone might be said to be clear and definite, but when considered with the entire plan it is apparent the electorate was only called upon to vote on a part thereof and was not informed as to the whole situation. It was held the notice of the election and the ballot proposition did not clearly and fully apprise the electors of what the board proposed to do in erecting the new building. For that reason the notice of election and proposition were declared insufficient and the application for writ of mandamus was denied.
In Kansas Electric Power Co. v. City of Eureka, 142 Kan. 117, 45 P. 2d 877, the general rule concerning ballot propositions in bond elections is laid down in paragraph 2 of the syllabus and is quoted with approval in the Towers case and cited in Wycoff. The rule as laid down in Powers has been consistently followed or factually distinguished by this court in subsequent cases.
In Henson v. School District, 150 Kan. 610, 95 P. 2d 346, a proposition was held defective which submitted only a question of a $6,500 bond issue when the proceeds were to be used in conjunction with a $9,150 government grant in erecting a school building costing $15,000.00.
In Heller v. Rounkles, 171 Kan. 323, 232 P. 2d 225, a rural high school district submitted a proposition to issue bonds in the amount of $95,000 to pay the cost of enlarging and remodeling an existing school house. The proposition was attacked by a suit to enjoin the issuance of the bonds on the ground that it did not inform the electors of the extent of the improvements and, in particular, that the total cost of the improvements would amount to $150,000, $55,000 of which was to be paid by the common school district. In affirming the district court’s ruling that the proposition was defective we stated:
“The general question presented has been treated on a number of occasions by this court in cases arising under the statute presently involved and under others of similar character, and while the facts of each case vary in particulars, it is clear from each case that election notices and ballots must clearly inform the voters as to the question submitted; that although the proposition may be stated in unequivocal terms, it must be informative of the whole and not of a part only of the proposed improvement, and of the funds applicable to the payment and the amount of bonds to be issued therefor, (citing cases).” (p. 329.)
As we have noted, the Powers case was cited with approval in Wycoff v. Board of County Commissioners, supra, and most recently in Willmeth v. Harris, 195 Kan. 322, 403 P. 2d 973.
Plaintiff cites the case of Pittsburg Board of Education v. Davis, 120 Kan. 768, 245 Pac. 112, in attempting to distinguish the facts here from those in Powers. While it was disclosed in the Davis case the proposition only called for the issuance of $450,000.00 in bonds and the board of education had adopted a program calling for expenditures of $755,000, the only issue considered by this court was whether more than one proposition was submitted on the ballot. No mention was made that the ballot was misleading for failing to advise the voters of the total cost of the project or that the proceeds of the bonds would be used in conjunction with proceeds of bonds issued, following a previous bond election, since apparently this question was not raised. Since the issue was not before the court in the Davis case it is not authority for the proposition that the instant case does not fall within the rule of Powers.
Plaintiff attempts to draw an analogy with City of Coffeyville v. Robb, 165 Kan. 219, 194 P. 2d 495. There the election simply called for additional bond money to be added to a previous bond issue which had proved insufficient to complete construction of the proposed project. There was no contention that funds from any other source would be available. Failure to mention the previous bond issue in the Robb case, where bond proceeds were to be added to bond proceeds to complete the same project, is not analogous to the omission here that bond proceeds were to be used in conjunction with levy fund balances, future levy proceeds and government grants to pay for a program, the cost of which was known by plaintiff to greatly exceed the proposed bond issue. In the opinion this court discussed at length and carefully distinguished the Powers case.
Plaintiff further attempts to make a distinction of the instant case from Powers on the ground that there only one school facility was involved, while here the proposition includes several buildings and sites. We cannot agree with plaintiff’s reasoning. We know of no reason why voters should not be advised of the total cost and funds to be used with respect to several school facility improvements as well as when only one is involved.
Even though the election notice and ballot proposition are found to give the voters insufficient advice, plaintiff suggests that adequate notice was supplied by another means. In this connection plaintiff submitted an affidavit of the district clerk setting out the annual receipts from the capital outlay fund levy and the annual encumbrances thereon from its inception in 1965 through 1967. A publisher’s affidavit showing the publication notice of the capital outlay fund resolution was attached as an exhibit to the clerk’s affidavit. The notice was published in the Wichita Beacon on July 2, 9 and 16, 1965. In substance the notice announced that the district board would make an annual levy as of January 1, 1965, for four tax years or not to exceed five years in the amount of 3.938 mills upon all taxable tangible property in the district, subject to modification as to any annual levy as permitted by law. The purposes listed in the notice, except for the acquisition of buses, were generally the same as those set out in the ballot proposition here. The notice referred to Section 37 of Senate Bill No. 402 of the 1965 Kansas Legislative Session.
Plaintiff argues that the capital outlay fund resolution notice, published in July 1965, gave the electors sufficient knowledge of the existence of other usuable funds so as to supply any deficiency of information in the ballot proposition submitted in the September 1966 election. We cannot agree. We cannot see how an elector voting at the bond election in September 1966 could tie the two together and assume the bond election and the special fund levy notice of July 1965 were hand in hand.
The levy notice referred to a senate bill of the 1965 Kansas Legislative Session. The bond election notice and ballot proposition refer to K. S. A. 72-6761. How could a voter reconcile these references? The levy was subject to modification and also provided for the acquisition of buses. Nothing in the levy notice indicated that there was, or could be, a buildup for future needs. Plaintiff fails to suggest any manner in which notice of the government grant was communicated to the electrorate.
What has been said effectively disposes of this appeal on the grounds that the election notice and the ballot proposition failed to sufficiently advise a voter as to the proposition upon which he was voting, specifically because the voter was not informed of the conjunctive use of other funds; and further the manner in which the proposition was submitted inaccurately, indicated a $15,000,000 proposition, whereas the actual estimated cost of the program was considerably in excess thereof. The basis of our holding is limited to the premises related.
In view of the conclusions just announced, a determination of the second issue presented in this appeal is not required. However, we believe the positions taken by the parties in this regard are worthy of brief comment.
The defendant, in the first instance, rejected registration of the Temporary Improvement Note on the sole ground that the ballot proposition failed to present the overall picture. The trial court in addition to ruling in favor of defendant on this ground also found the ballot defective because more than one proposition was submitted. Plaintiff expresses great alarm at the prospect of separately submitting each facility improvement project contained in the program of a large unified district, charged with furnishing facilities for more than one hundred attendance centers, and we are well aware of the reasons for plaintiff’s alarm. Plaintiff submits the 14 projects are connected, interrelated, and make up only one program and thus may be submitted as one proposition within the contemplation of the language found in K. S. A. 72-6761. Furthermore, plaintiff points out that the proposition submitted is drafted in the language of the statute. In support of its position plaintiff cites Thomas v. Covell, 119 Kan. 684, 240 Pac. 574, and Pittsburg Board of Education v. Davis, supra, wherein connected subjects tendered combinedly as constituting one municipal project were held to amount to one proposition and properly submitted as such.
The attorney general, as counsel for defendant, concedes in his brief and on oral argument that the 14 different facility improvement projects, making up defendant’s program, need not be separately listed and subjected to an item by item vote. He disagrees, however, with plaintiff’s interpretation of 72-6761 in this regard. Plaintiff submits that the proper interpretation to be placed upon the phrase “for one or more of the above purposes” in 72-6761, is to allow the board to submit the proposition for issuing bonds for the various purposes in combined form, rather than in the alternative as was done in the instant case. The attorney general suggests that if the total estimated cost of the program and the use of other funds in conjunction with the bond proceeds were recited, and if the conjunction or were replaced by and, the proposition would be legally sufficient and fall within the rule laid down in Powers. (See Thomas v. Covell, supra; Pittsburg Board of Education v. Davis, supra; and Robertson v. Kansas City, 143 Kan. 726, 56 P. 2d 1032.)
In view of the possibility of the existence of additional information or relative evidence bearing on the question whether plaintiff’s projects are so connected that they may be tendered combinedly as one proposition, either in the alternative as submitted or in combined form as suggested by the attorney general; neither form is approved nor disapproved. We have related the positions taken by the parties in this regard merely for the purpose of showing some of the matters to be considered by unified districts when confronted by similar problems.
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The opinion of the court was delivered by
O’Connor, J.:
This is an action for damages by the plaintiff, Jack Richards Aircraft Sales, Inc., against defendant J. C. Vaughn because of an alleged breach of contract involving the sale of an airplane. After trial without a jury in district court, judgment was entered in favor of plaintiff, from which defendant now appeals.
A brief recital of the facts will set the stage for discussion of the questions presented.
Plaintiff was an Oklahoma corporation engaged in the sale of aircraft, and in 1964 had an Aero Commander 520 twin-engine airplane for sale. In early January of that year, plaintiff, through its duly authorized salesman, Stan Bernstein, entered into negotiations with defendant for the purchase of the aircraft. On January 8, Bernstein flew the plane to Nevada, Missouri, where he met defendant, and they proceded to Joplin for lunch and further discussion about the contemplated purchase. This meeting culminated in the signing of a “Purchase Order” by Bernstein and defendant, a copy of which follows:
As disclosed by the written instrument, the purchase price for the Aero Commander was $30,950. Defendant was allowed the sum: of $4,450 as a trade-in on a single-engine Swift aircraft owned by him. Defendant gave Bernstein a check for $500 as down payment,, leaving a balance due of $26,000. Defendant also signed an application for title to the new aircraft for filing with the F. A. A.
A few days later (January 13) Bernstein met defendant at Fort Scott, Kansas. Thereupon, they drove to Prescott and received! from the cashier of the Prescott State Bank (where defendant did business) a letter of credit, and also defendant’s personal financial statement showing a net worth in excess of $270,000. These documents were to be used by Bernstein in aiding defendant to secure any financing necessary for the purchase. Defendant also executed and delivered to Bernstein a bill of sale on the Swift aircraft. In the meantime the new plane was being repainted and new tires put on in accordance with the terms of the purchase order.
The trial court found from evidence adduced by both parties that plaintiff was not to finance the purchase of the aircraft in question, but was only to assist defendant in seeking credit sources. Bernstein, a native of Chicago, even went so far as to contact a financing institution in that city which, in turn, contacted defendant’s bank. At any rate, no difficulty was encountered with respect to the financing.
Within a few days after January 13, 1964, defendant decided not to go through with the transaction. He notified Bernstein by telephone that his banker advised him against the purchase and that he (defendant) “didn’t want the plane at that time.” There was testimony defendant suggested plaintiff keep his check and the trade-in aircraft and credit his account in anticipation of a later date of delivery. Plaintiff refused to accede to this arrangement, and defendant stopped payment on his check. At or before this time when plaintiff attempted to file the bill of sale on the Swift aircraft with the F. A. A., an unpaid mortgage on the plane was discovered, despite defendant’s certification in the bill of sale previously executed that the plane was “not subject to any mortgage or encumbrance.” At some later time defendant apparently satisfied the mortgage, and clear title was finally obtained. The bill of sale was subsequently registered by the F. A. A.; however, defendant refused to relinquish possession of the craft to plaintiff.
Defendant took no further steps to consummate the transaction, and on December 31, 1964, plaintiff filed its action, claiming damages for breach of contract. Shortly after filing the lawsuit plaintiff sold the Aero Commander to a third party for $22,000, after having again repainted the craft to satisfy the new buyer. The resale was made after repeated demonstrations to prospective purchasers and also after advertising of the plane in national trade journals.
In his answer to plaintiff’s petition for damages defendant set up as a defense that the purchase order was procured by fraud on the part of plaintiff, and further alleged his disaffirmance of the entire transaction. Defendant also counterclaimed for return of the title to the Swift aircraft, and actual and punitive damages.
After trial, the district court, on June 14, 1967, rendered a comprehensive memorandum opinion, setting forth findings of fact substantially as recited herein, and concluded that the purchase order was a binding agreement on both parties; that plaintiff had properly minimized its loss by resale of the airplane; that as a result of defendant’s breach of the contract plaintiff sustained a loss in the amount of $5,125 ($4,000 in the balance of the purchase price plus $1,125 for the cost of repainting the plane); and that plaintiff was entitled to the possession of the Swift aircraft.
Defendant first contends the court erred in overruling his motion for summary judgment and also his motion for directed verdict at the close of all the evidence because the purchase order on its face was so incomplete, indefinite and uncertain that it did not rise to the dignity of an agreement binding the parties contractually. Defendant points out alleged deficiencies in the instrument, and in particular the reference to “Time,” inasmuch as the terms of financing were not set forth in writing. We do not agree.
As a general rule, in order for a written agreement to be binding it must be sufficiently definite in its terms and requirements as to enable a court to determine what acts are to be performed and when performance is complete. This rule, however, cannot be blindly followed as a measuring stick for determining the sufficiency and definiteness of the terms of a contract. Where a purported contract is so vague and indefinite that the intention of the parties cannot be ascertained therefrom it is unenforceable; but absolute certainty is not required — only reasonable certainty is necessary. A contract may contain some formal imperfections or be lacking in detail, but it will not fail for uncertainty if the court can ascertain the terms and conditions by which the parties intended to be bound, and thus carry their intentions into effect. The fact that the exact meaning of language used can be ascertained only by consideration of extrinsic evidence does not render the agreement unenforceable for indefiniteness or uncertainty. Just recently we said that when it is apparent from the provisions of a written instrument that they are ambiguous, incomplete or silent as to a particular matter, parol evidence is admissible to clear up the ambiguity and to show the terms of the actual agreement in its entirety. (Culp v. Bloss, 203 Kan. 714, 457 P. 2d 157.) For a compilation of authorities and a full discussion of the requisite certainty and completeness essential to create a binding agreement, see, Hays v. Underwood, Administrator, 196 Kan. 265, 411 P. 2d 717. Also, see, 17 Am. Jur. 2d, Contracts § 75, et seq.; 17A C. J. S., Contracts § 294, et seq.
We believe the purchase order in question sufficiently identified the aircraft, the specific equipment to be included, the work to be done prior to delivery, the trade-in allowance on defendant’s airplane, the down payment and balance to be paid. The reference to “Time” as the term of payment was subject to explanation by extrinsic evidence, which was admitted by the trial court. After testimony on the point, the court found that the parties had agreed plaintiff’s obligation was to help secure the financing if necessary. Applying the foregoing rules, we have no difficulty in upholding the district court’s conclusion the instrument was sufficiently definite and certain in its terms to create a binding agreement between the parties. For that matter, even if we accept defendant’s suggestion that the instrument was merely a preliminary memorandum, that does not necessarily imply the parties had not already bound themselves to a definite and enforceable contract whose terms could be changed only by mutual consent. (See H. B. Zachry Company v. O’Brien, 378 F. 2d 423 [10th Cir. 1967].)
Defendant next complains the trial court erred in excluding certain testimony offered in support of his defense that the purchase order was induced by fraud. Defendant’s argument on this point overlaps to a degree his previous contention that the writing did not constitute a binding contract between the parties. Closer examination, however, leads us to believe defendant is really attempting, through use of the fraud exception to the parol evidence rule (see, Stapleton v. Hartman, 174 Kan. 468, 257 P. 2d 113; Stegman v. Professional & Business Men's Life Ins. Co., 173 Kan. 744, 252 P. 2d 1074), to prove, in effect, an oral “side agreement” materially at variance with the written purchase order. Defendant directs our attention to evidence there was an oral understanding that either party could cancel the agreement if he desired to do so; that plaintiff was to arrange the financing; that the down payment would be returned if defendant’s banker disapproved the transaction and the “financing didn’t go through.” The record is confusing on just how much of this evidence was actually excluded. The trial court con- eluded, and we think properly so, there was no evidence of fraud, and the proffered testimony tended not only to vary, but to nullify, the written agreement entered into by the parties on January 8, 1964.
Without going into great detail about each of the numerous items defendant contends were embodied in the “side agreement,” we are of the opinion the court’s ruling on the admissibility of evidence did not result in prejudicial error to the defendant. The defense was built almost exclusively on the proposition that the written contract (purchase order) was procured or induced by the fraudulent and false representations of plaintiff’s salesman, Bernstein. The only evidence offered in support thereof, however, was the purported “side agreement” which, in effect, was that the parties were not to be bound by the written agreement “if for any reason either party decided not to go ahead with the alleged sale”— directly contrary to the intention of the parties as expressed and implied by the terms of the written purchase order itself. Under defendant’s theory, the purchase order did not mean what it said and was a complete nullity. (See, Cherry v. Joyce, 168 Kan. 475, 213 P. 2d 1010.) Such argument is tantamount to saying defendant was induced to execute the instrument, which on its face was binding, with full knowledge that neither party unequivocally and without reservation intended to perform in accordance with the terms of the writing. This, we believe, brings the case within the spirit of the rule stated in Edwards v. Phillips Petroleum Co., 187 Kan. 656, 360 P. 2d 23:
“Where an oral promise is made contemporaneously with the execution of a written contract, to the promisee’s knowledge directly at variance with the written contract, the oral promise is merged in the written contract, and the promisee cannot invoke the rule that fraud may be predicated upon a promise made without the intention of performance.” (Syl. ¶ 1.)
Broadly stated, the parol evidence rule excludes evidence of prior or contemporaneous oral agreements to contradict or to modify a written contract. Such evidence, to be admissible for the purpose of proving fraud, and thereby defeat the written agreement, must tend to establish some independent fact or representation, some fraud in the procurement of the instrument, or some breach of confidence concerning its use, and not a promise directly at variance with the promise of the writing. (Edwards v. Phillips Petroleum Co., supra, and authorities therein cited.) A succinct statement of the law applicable to the fraud claim here is found in 32A C. J. S., Evidence § 979, p. 473:
“. . . parol evidence is inadmissible when the alleged fraud concerns a promise or representation directly at variance with the terms of the written instrument. . . .”
Defendant further urges that the trial court erred in its computation of damages due plaintiff. As nearly as we can ascertain, defendants contends the market value of the aircraft at the time he repudiated the sale (January 1964) was substantially more than $22,000, the price for which plaintiff eventually sold the craft approximately nine months later. The argument is completely unfounded and may be answered, in part at least, in the language of the trial judge, as found in his memorandum opinion on the point:
“A party who is injured by the breach of a contract is entitled to compensation for the injury sustained and is to be placed, so far as it can be done by a money award, in the same position he would have occcupied if the contract had been performed; the seller is entitled to the benefit of his contract. (46 Am. Jur. 756, Sales, Section 615.) And where the buyer repudiates the contract, the seller may liquidate his damages by a resale of the personalty; if the sale is fairly conducted and there is no evidence of unfairness, the amount received on the resale is accepted as conclusive on the question of market value, and the measure of the seller’s recovery is the difference between the agreed price and the amount received on the resale, plus the expenses properly incidental to such resale. (46 Am. Jur. 710, Sales, Section 566.) This is the rule in Kansas; one injured by a breach of contract has a duty to minimize his loss to the extent reasonably possible under the existing circumstances. (Cain v. Grosshans & Petersen, Inc., 196 Kan. 497 at 501, 2, 431 P. 2d 98.)”
(Also, see, International T. & R. Corp. v. Benscheidt, 141 Kan. 416, 41 P. 2d 737; 46 Am. Jur., Sales § 566, et seq.; 78 C. J. S., Sales, § 426, et seq.)
Generally, a seller is under a duty to resell the article of sale within a reasonable time after breach or repudiation of the contract by the buyer. If the seller acts prudently and with reasonable care and judgment, the time of resale is, to a large extent, within his discretion. (46 Am. Jur., Sales §574; 78 C. J. S., Sales §429. See, Anderson-Thompson, Inc. v. Logan Grain Co., 238 F. 2d 598 [10th Cir. 1956].)
Here, the resale by plaintiff of the Aero Commander cannot be said to have been unreasonably delayed. There was evidence that after repudiation of the contract the market value of the aircraft diminished considerably below the figure for which it was finally sold. Plaintiff, in an obvious good-faith effort to minimize the amount of its loss, advertised the plane in various publications and magazines, and in addition, demonstrated the craft to more than a dozen potential buyers before finally selling it for $22,000. Resale at this figure would appear to have come through plaintiff’s diligence to obtain the best price possible on the market. There is nothing to indicate the resale was made in other than a fair and reasonable manner, or that the plaintiff acted other than in the exercise of its best judgment as to the time the sale was finally consummated. Under the circumstances, the trial court was justified in accepting the resale price as the value of the aircraft in computing damages.
Other points raised in defendant’s brief have been examined and found to be without substance.
No prejudicial error having been shown, the judgment is affirmed. | [
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The opinion of thie court was delivered by
Kaul, J.:
Plaintiff-appellee was granted a divorce on the grounds of extreme cruelty and gross neglect of duty and in the same decree defendant-appellant, on her cross-petition, was granted a divorce on grounds of gross neglect of duty.
In her cross-petition defendant originally prayed for separate maintenance. During the course of the trial, at her request, defendant was allowed to amend and ask for a divorce. On motion for a new trial, at her request, the decree of divorce as to her action was set aside. Her request that a decree of separate maintenance be substituted therefor was denied.
In her appeal to this court defendant asks that the divorce, granted to plaintiff, be set aside on grounds of insufficient corroborative testimony and that she either be granted separate maintenance by this court or in the alternative that the case be remanded for a new trial. Defendant also appeals from the award of alimony and child support. She claims her needs and those of the two minor children total $450 per month and that the trial court abused its discretion in awarding alimony in the amount of $200 for a period of six months and $100 per month thereafter for an additional period of four and one-half years and child support in the amount of $175 per month.
At the time of the trial the parties had been married for more than twenty-one years. They had two minor children, ages seventeen and ten years.
After hearing the evidence of both parties the trial court found as follows:
“The parties’ assets consist of a small equity in the home which was purchased without a down payment in 1964, furniture valued at $2,000.00, a 1966 Chevrolet valued at approximately $1,900.00, a paid up insurance policy for $1,000.00 and another insurance policy for $7,500.00 the value of which was not shown by the evidence. The plaintiff’s take home pay is approximately $650.00 a month. The defendant completed high school and two years of college and is unemployed. She has done sales work and is capable of earning $60.00 to $70.00 a week. The plaintiff borrowed $763.00 to pay attorneys’ fees and court costs. This is to be paid in monthly installments of $42.39.
“The defendant has been guilty of gross neglect of duty and extreme cruelty, and the plaintiff has been guilty of gross neglect of duty.
“The defendant is a suitable and proper person to be awarded custody of the children.”
The defendant was awarded custody of the children, subject to reasonable visitation by plaintiff. Defendant was awarded the home, subject to the mortgage thereon and the furniture and household goods. Plaintiff was awarded the insurance policies and the 1966 Chevrolet.
After hearing a motion of defendant, to increase alimony and child support, to vacate the decree or in the alternative grant defendant a new trial, the trial court increased the award for child support from $75 per month for each child to $87.50 per month, or a total monthly award of child support in the amount of $175.00; and, as previously noted, vacated that part of the decree granting defendant a divorce.
The record discloses considerable conflicting testimony and reflects that the parties had lived in a quarrelsome relationship for several years prior to their separation. One of the chief causes of controversy appears to have been defendant’s mother. From the evidence of both parties it appears that many of their arguments stemmed from the relationship of defendant’s mother to their family.
Briefly, plaintiff testified that defendant allowed her mother to come into their home, dominate the family and boss them; that no family decisions could be made unless defendant consulted with her mother; that defendant told plaintiff in no uncertain terms that her mother was foremost; that defendant’s mother continually interfered with the raising of their children; that he had a job offer in Los Angeles but defendant would not move because it meant moving away from her parents; and that when there was talk of leaving defendent would say that plaintiff could leave but that she would not move away from her parents. Plaintiff testified that he tried to persuade defendant to keep her mother away from the home and cease interfering with plaintiff, defendant and their children but that defendant not only refused to curb her mother’s interference but actually encouraged it.
Plaintiff further testified that the arguments would become bitter, make him nervous and that he would leave the house on occasions because defendant nagged him about his relationship with her parents. He testified that when he had friends or relatives visiting, defendant’s mother would drop by without invitation and monopolize the conversation to the point that it was impossible for him to have friends or relatives in the home.
We believe the evidence fairly justifies the conclusion that defendant encouraged and condoned her mother’s interference in the marital life and family affairs of plaintiff and defendant.
Defendant’s own conduct and her refusal to restrain her mother’s interference in the home apparently became unbearable to plaintiff. A course of conduct on the part of one spouse which has become intolerable to die other, so as to disrupt domestic harmony and to destroy legitimate matrimonial objectives, has often been characterized as behavior amounting to extreme cruelty. (Haynes v. Haynes, 202 Kan. 83, 446 P. 2d 749, and Saint v. Saint, 196 Kan. 330, 411 P. 2d 683.) Cruelty as a ground for divorce is generally a course of conduct rather than a single act. (Brown v. Brown, 171 Kan. 249, 232 P. 2d 603, 32 A. L. R. 2d 102.) Physical abuse is not required to meet the statutory requirement of extreme cruelty. (Saint v. Saint, supra.)
The evidence here indicates the wife was more interested in maintaining her ties with her mother than in her responsibilty to aid in sustaining a harmonious marriage. In Petty v. Petty, 147 Kan. 342, 76 P. 2d 850, where evidence was found sufficient to establish gross neglect of duty, it was stated:
“. . . There is room to say the blame was not all on one side, but the trial court was in better position to say which party was responsible for it than is this court. In the division of responsibilities between husband and wife, the greater duty of having a harmonious home ordinarily falls upon the wife, just as the greater duty of providing a living falls upon the husband. Here the evidence sustains the view that defendant’s interest in a harmonious home was secondary to her own ambitions apart from the home, and that she carried this to such an extreme as to be primarily responsible for the failure of their marriage. Both knew their marriage had failed. Each wanted a divorce. To refuse a divorce would serve no good purpose. We are unable to say there was no substantial evidence of gross misconduct of defendant sufficient to sustain the judgment for divorce.” (p. 349.)
We have said that extreme cruelty and gross neglect of duty, as grounds for divorce, overlap to a considerable degree. An act of misconduct may fall into either category. Cruelty has been recognized as an element in gross neglect of duty. (Haynes v. Haynes, supra, and Kelso v. Kelso, 182 Kan. 665, 324 P. 2d 165.)
In addition to the direct testimony and circumstantial evidence, the trial court had a right to draw reasonable inferences from the testimony of plaintiff, as well as from that of other witnesses which pertained to the grounds alleged. (Tuley v. Tuley, 168 Kan. 106, 211 P. 2d 95.)
In the instant case we believe the evidence sufficient to support plaintiff’s decree of divorce on either ground.
Defendant denied the accusations of plaintiff and his witnesses, however, the conflict was resolved against defendant by the trial court. We have said time and time again it is not our function to weigh conflicting evidence or substitute our judgment for that of the court which heard the case. Our task is simply to determine if the evidence be sufficient to support the findings and judgment of the trial court. (Saint v. Saint, supra, and Preston v. Preston, 193 Kan. 379, 394 P. 2d 43.)
Plaintiff’s testimony was corroborated by his sister and brother-in-law who testified that plaintiff asked them to find a house so he could get his family away from his in-laws; that whenever plaintiff and defendant visited them defendant would call her mother, tell her she had arrived at their home. Plaintiff’s sister testified defendant told her that she would leave plaintiff before she would leave her mother, and that defendant did whatever her mother told her to do.
A witness for defendant testified that defendant stated she did not want to move to California and leave her parents.
Plaintiff testified that during the latter stages of the marriage, defendant would not talk to plaintiff and started writing notes. As corroboration, two notes written by defendant to plaintiff were received in evidence. In testing the sufficiency of evidence for corroboration purposes, the evidence may be circumstantial as well as direct. (Carter v. Carter, 191 Kan. 80, 379 P. 2d 311.)
Corroboration of a party’s testimony is required by statute (60-1609 [d\). However, corroboration need not support each and every detail of the injured party’s testimony, nor, standing alone, sustain the judgment. It is sufficient if corroboration be such as will tend to establish some fact or facts testified to by the complaining party, which, if believed, would justify the granting of a divorce. (Haynes v. Haynes, supra, and Saint v. Saint, supra.)
We believe there is direct corroborative testimony, testimony of a corroborative character and circumstantial evidence, touching on the alleged grounds, sufficient to meet the statutory requirements of corroboration.
We have carefully examined the evidence with respect to the awards of alimony and child support and fail to find anything approaching abuse of discretion in the conclusions reached by the trial court in this regard.
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
Fatzer, J.:
The defendant, Ronald Lyon, was convicted by a jury of the crime of embezzlement by a bailee in violation of K. S. A. 21-547. He was sentenced to a term of not less than fifteen years in the Kansas State Penitentiary pursuant to K. S. A. 21-107a.
At the oral argument, it was stated the sole question presented is whether there was an absence of substantial evidence proving or tending to prove the essential elements of the crime charged.
The defendant was in the business of drilling water wells. On September 8, 1966, he took his 1957 Chevrolet station wagon into the Grumbein Motor Company at Dighton, Kansas, to have it repaired. The motor had a broken piston and it was necessary that it be disassembled in order to make the repairs. The defendant arranged to leave his station wagon for repairs and to borrow a 1958 Chevrolet pickup from Clarence Grumbein, the owner of the Grumbein Motor Company, while the repairs to his station wagon were being made. The defendant was told the repairs would be completed within two or three days, and he agreed to return the pickup and reclaim his station wagon.
Mr. Grumbein knew the defendant was not a resident of Dighton or Lane County, and testified the defendant gave him the impression he was working south and east of Dighton. However, the defendant took the pickup and proceeded to Crete, Nebraska, where the vehicle eventually broke down and was left sitting until February 1967. Grumbein attempted to contact the defendant but was only successful in contacting his mother who did not know where he could be reached. The defendants mother paid the repair bill on the station wagon and took care of certain no-fund checks the defendant had previously issued to Grumbein.
On March 1, 1967, the defendant took the pickup in question to the Vincent Motor Company in Russell, Kansas, to be repaired. He told the service manager of the Vincent Motor Company to do any work required to put the vehicle in good shape. A Mr. Nuss, who was employed by the Vincent Motor Company, testified he told the defendant it would take several days to overhaul the pickup and upon the defendant’s request, loaned him a pickup truck upon his agreement to come back in a few days, pay for the repairs, and pick up his vehicle. Nuss testified the defendant did not tell him he (the defendant) had borrowed the pickup in question. Nuss found a dealer’s license plate in the pickup truck and was advised by the sheriff of Russell County that it belonged to the Grumbein Motor Company at Dighton. He then called Mr. Grumbein and was informed that from the description it appeared to be Grumbein’s missing vehicle.
In the meantime the defendant was arrested and jailed in La Crosse, Kansas, on a misdemeanor bad check charge and he was later turned over to the sheriff of Lane County. The defendant was arrested by the Lane County sheriff on March 31, 1967, some six and a half months after he had borrowed the vehicle in question. During this period, the defendant made no attempt to contact the Grumbein Motor Company in any manner or to reclaim his 1957 station wagon and return the borrowed vehicle.
The defendant contends that the record fails to disclose the complainant Grumbein made a demand for the return of the vehicle, and asserts the verdict and judgment cannot stand. The point is not well taken. In State v. Stout, 175 Kan. 414, 264 P. 2d 1056, it was said that where, as in G. S. 1949, 21-547 (now K. S. A. 21-547) a demand is not made an element of the offense, proof by the state of the making of a demand is neither necessary nor required, and that a person may be convicted under the provisions of that statute where he embezzles property with which he has been entrusted as a bailee.
The case was submitted to the jury under the factual issues and upon instructions to which the defendant made no objection. The jury, under proper instructions from the court, saw fit to give credence to the testimony of the prosecutions witnesses, to disbelieve the defendant, and it returned a verdict of guilty as charged in the information. Under all the facts and circumstances disclosed by the evidence, the jury might have reasonably drawn an inference of guilt. It is the function of the jury, not the court on appellate review, to hear the evidence and pass upon the credibility of the witnesses, and there was substantial evidence to support the verdict of guilty, which received the approval of the district court. Under such circumstances, the verdict of guilty will not be disturbed on the grounds it was based on insufficient evidence or contrary to the evidence. (State v. Osburn, 171 Kan. 330, 232 P. 2d 451; State v. Magee, 201 Kan. 566, 441 P. 2d 863.)
The defendant’s contention the district court erred in failing to transfer venue of the case to Russell County is not well taken. Under the provisions of K. S. A. 62-407 where property taken in one county by embezzlement has been brought into another county, the jurisdiction is in either county. (State v. Small, 26 Kan. 209, and State v. Doolittle, 153 Kan. 608, 113 P. 2d 94.)
A careful examination of the record discloses no trial errors that would justify the granting of a new trial. The judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This action was commenced by James E. McAdam on October 1, 1964, against Thad Hanna, Don Lee Hopkins, Verna Hopkins, Mitchell Faroh, Ruth Faroh, William Lundy, Don Lee Company, Inc., Howard L. Parker Company, Inc., Tom Cunningham and his surety as guardian, the Firemans Fund Insurance Company, Inc., to recover losses suffered in his estate due to the willful mismanagement and trafficking in his estate by his guardian and his guardian s attorney and for equitable relief against all the defendants. Tom Cunningham and the Firemans Fund Insurance Company, Inc., are the sole appellants and they have appealed from the district court’s findings of fact, conclusions of law, and judgment entered against them.
The district court’s findings of fact are extensively set out in the record, but to detail them in this opinion would serve no useful purpose. It is sufficient to say that on August 2, 1963, Tom Cunningham, who had been a member of the Bar of this state for over thirteen years, was appointed guardian of the person and estate of James E. McAdam, an incompetent minor, by the probate court of Sedgwick County, Kansas. On that same date, Thad Hanna was appointed by the probate court to act as attorney for the guardian. On October 1, 1964, the incompetent minor attained his majority and was ordered restored by the probate court. From August 2, 1963, until October 1, 1964, when the guardian was relieved of his duties, several alleged acts of misconduct occurred which are the subject of this action.
The district court found, among other things, that the guardian made investments in five separate first mortgages, four of which were not recorded, from the ward’s estate, in the total sum of $32,000, a sum greater than the worth of the properties, without filing a petition in the probate court and without authority of the court to invest the money, resulting in a loss to the estate of $16,000.
The court further found that the guardian had in his possession and management certain real property located in Sedgwick County of the value of $22,500 which he traded for a farm located in Elk County, Kansas, of the value of $14,500, resulting in a loss to the estate of $8,000. The court found that out of the $22,500, Don Lee Hopkins received $700 for his services in connection with the sale of the property, and that Hanna and Cunningham received $7,300 which they divided equally, and that both Hanna and Cunningham knew at that time the $7,300 came directly from the sale of the property. It further found that in all the transactions involved, Hopkins, Hanna and Cunningham committed acts of fraud which resulted in losses to the estate.
It is noted in passing that as a result of those transactions, Hanna relinquished his license to practice law in the state of Kansas. (In re Hanna, 198 Kan. 458.)
The court entered judgment against the defendants Hanna, Hopkins, Don Lee Company, Inc., a realty company owned by Hopkins, Cunningham, and the Firemans Fund Insurance Company in the sum of $24,000, and found that the named defendants were primarily liable and the surety company secondarily liable for the payment thereof.
The appellants first contend that the finding of fraud on the part of Tom Cunningham is not supported by the evidence. In considering the contention, we note the rule that where, as here, the evidence is heard orally by the district court, its findings thereon have the force and effect of a jury’s verdict and if supported by substantial evidence, they will not be disturbed on appellate review.
In approaching this important question involving a member of the Bar of this state, it should be stated that it would be of no benefit to the Bench and Bar to spread upon our reports the facts as disclosed by the evidence. It is sufficient to say that we have carefully read the entire record consisting of approximately 200 pages of printed matter, including the various exhibits set forth therein and the testimony of the individual defendants, and considering all the circumstances, we are compelled to conclude it discloses ample and substantial evidence to support the district court’s findings and conclusions.
The appellants next contend the district court erred in finding Tom Cunningham committed acts of fraud since fraud was not pleaded nor contained as an issue in the pretrial order. Reference is made to Agee v. Kansas Highway Commission, 198 Kan. 173, 422 P. 2d 949, where it was said, “[a] court cannot go beyond the issues of fact tendered in an action and make a finding on matters which exceed those issues.” (p. 179.) Reference is also made to language in In re Estate of Grove, 158 Kan. 444, 148 P. 2d 497, to the same effect.
The petition as amended set forth with particularity the facts and allegations of each transaction, Cunningham’s acts of malfeasance and misfeasance as guardian; disregard of the statutory probate procedure, his trafficking in the estate of his ward, his receiving from his attorney part of the alleged “finder’s fee” for mortgage funds out of the estate’s money, and other acts set forth in the record, and further alleged that, “because of the negligence or willful acts of said guardian and his attorney,” the estate suffered loss. The petition did not affirmatively allege in so many words that the guardian and his attorney committed acts of fraud.
The issues of fact to be determined by the district court were contained in the pretrial order which reads in part:
“2. The remaining issues of fact to be determined are as follows:
“B. The facts and circumstances surrounding the five investments set out in plaintiff’s second amended petition . . . including the duties and involvement of all the parties therein.
“C. The facts and circumstances of the trade or transfer of (Sedgwick County property for the Elk County farm) ... as set out in plaintiff’s second amended petition . . . including the duties and involvement of all the parties therein.
“D. The extent to which acts of guardian . . . and/or the attorney, Thad Hanna, have been previously approved by the Probate Court . . .
“E. The exact nature of the involvement of the defendants and each of them in the transactions complained of by the plaintiff.” (Emphasis supplied.)
The issues of law to be decided by the district court were set forth in the pretrial order which reads in part:
“3. The remaining questions of law to be decided are as follows:
“C. Has the defendant, Tom Cunningham, failed to faithfully perform and discharge all of the duties of his trust according to law.
“D. If the answer to the above is in the affimative, in what specific respects has the defendant Cunningham so failed and what loss, if any, has the plaintiff sustained by reason of such failure on the part of the defendant, Tom Cunningham.” (Emphasis supplied.)
It is the rule in this jurisdiction that the district court must try the case on the issues framed by the pleadings as defined in the pretrial order. Once the issues are defined and the court proceeds to render final judgment, the parties are bound thereby. The district court has jurisdiction to decide only such issues as are raised by the pleadings or defined in the pretrial order, with the limited exception of new issues raised by evidence to which there is no objection. (Bowen, Administrator v. Lewis, 198 Kan. 605, 426 P. 2d 238; Green v. Kensinger, 193 Kan. 33, 392 P. 2d 122.)
We are of the opinion that the facts and issues decided by the district court were properly within the issues of the pleadings, the pretrial order, and the evidence. The record indicates the parties tried the action on the theory the district court was sitting both as a court of law and as a court of equity and on the theory the case should settle all issues between the parties so as to avoid further litigation. At issue was the exact nature of the involvement of Cunningham in the transactions complained of by the plaintiff, which included real estate transactions and mortgages, and whether those transactions and mortgages were legal or void. No rights of innocent purchasers were involved. No objections were made to a great deal of the evidence introduced during the course of the trial which tended to establish fraudulent conduct on the part of Cunningham. Since such evidence was admitted without objection, and since Cunningham had the opportunity to answer and cross-examine the witnesses, no error can be predicated thereon.
It is next contended the district court erred in entering judgment against Tom Cummingham and his surety, because a guardian is not personally liable for losses to the estate incurred without his fault. It is argued that since Hanna handled all of the transactions concerning the property of the estate and Cunningham relied upon him for advice and counsel and followed his advice, Cunningham was not the perpetrator of nor a party to the fraud of Hanna and Hopkins. It is further argued that the only error Cunningham made as guardian of the estate was relying upon the advice and guidance of Hanna who was appointed by the probate court to represent him. The appellants assert that under such circumstances, Cunningham should only be held to the standard imposed upon an ordinary layman acting in a like capacity, since he had the independent advice of counsel.
A guardian is responsible for the faithful performance of the duties of his office, and must give his personal attention to the management of his ward’s estate. He must be faithful, vigilant, and competent in such management, and, although he is not an insurer, is liable for losses resulting from an overt act of mismangement, or from failure to exercise the diligence and prudence ordinarily em ployed by reasonable men. (39 C. J. S., Guardian and Ward, § 76, p. 117.) The duties of fiduciaries are discussed at length in 2 Bartlett’s Kansas Probate Law and Practice (Rev. Ed.), §§ 967-971, pp. 478-485, and many of our decisions are cited in support of the rules of law stated. Further reference to the law on the point is unnecessary and the reader is referred to the text and the decisions cited.
The trouble with the appellants’ argument is that the district court found Cunningham not only knew that the property of his ward was being dissipated, but actually participated therein. As guardian, he afforded the only protection of the ward against the unfaithfulness of anyone having control of his property. The record indicates he failed to enforce his ward’s rights and did not exercise the care of an ordinary prudent man to preserve the estate of his ward from plunder. The mere fact that a fiduciary relies upon the advice of counsel cannot be regarded as an adequate excuse where his conduct is nevertheless careless and imprudent. (2 Bartlett’s Kansas Probate Law and Practice [Rev. Ed.], § 970, p. 484.) As indicated, the district court’s findings were that Cunningham’s conduct was improper to a greater degree than mere carelessness and imprudence. In short, Cunningham did not “faithfully and impartially and to the best of his ability discharge all the duties of his trust according to law” (K. S. A. 59-1702)., and he and his surety are liable for the loss occasioned by such failure.
Other than as recited above, it is unnecessary to discuss or state in greater detail the evidence or findings. The record has been fully and diligently studied and we conclude that the evidence sustains the findings, and the judgment is in all respects affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an action for assault and battery brought by the plaintiff against the defendants, members of the Wyandotte township volunteer fire department, seeking actual damages in the amount of $100,000 and punitive damages in the amount of $100,000 as the result of an alleged assault occurring while the defendants were putting out a fire on the plaintiff's property.
The case was tried to a jury which returned a verdict against four of the named defendants (appellants), assessing damages against each of them in the sum of $2,500 actual damages and $2,500 punitive damages. Appeal has been duly perfected.
The appellants specify trial errors primarily pertaining to the admission of evidence.
The evidence in this case was conflicting, but since the jury found in favor of the plaintiff, we shall state the facts in the light most favorable to the plaintiff.
Leonard Jacks (plaintiff-appellee) at the time of the incident in question weighed 160 pounds and stood about 5 feet 8 inches tall. On the 7th day of April, 1963, he was severely beaten by Roy Cloughley, Charles Glenn, Don Dowdall and Paul Hancock (defendants-appellants). All of the defendants, including Hayden Wylie, were volunteer members of the Wyandotte township fire department.
Approximately one week prior to April 7, 1963, the Wyandotte township fire department had been called to put out a fire that had originated from a trash burner in a nearby residential area. The fire had spread across the appellee’s property onto another neighbor’s land, that of Robert Carr. A few days thereafter the appellee went to the fire station and explained to Mr. Cloughley that he was cleaning his field and would appreciate it if the fire department would not interfere with his burning of the trash. The appellee testified: “They told me that it would be, no problem’.”
Shortly after the first fire and sometime prior to April 7, 1963, the perimeter of the appellee’s property in question had been plowed.
On the morning of April 7, the appellee had set fire to brush piles on his property. Shortly thereafter Mrs. Robert Carr called the Wyandotte township fire department to the scene. The appellee was some distance from the point where the fire truck pulled onto his property and commenced putting out the fire. At that time the appellee was talking to a neighbor, Floyd McCord, at the fence line. Upon seeing the firemen engage in putting out the fire, the appellee with a pitchfork in hand headed for the fire truck, but before reaching the truck he threw the pitchfork to the ground. When the appellee reached the truck he saw Mr. Cloughley was the driver and he said: “Roy, I don’t want this fire put out; I thought I had that explained to you, that I would like to clean up this field.” According to the appellee Cloughley said: “I will come in your field, and do any damned thing I want to, any time I want to.”
According to the appellee Cloughley was standing and sitting at the same time, holding the door of the truck open, when he kicked at the appellee who in turn reached up and grabbed Cloughley by the shirt, which was torn. Cloughley came out of the truck onto Jacks where an affray ensued on the ground, joined in by the other appellants.
In an effort to defend himself the appellee got ahold of a fire extinguisher on the truck which he endeavored to use. In the affray the appellee was kicked about the body and head, strangled, and his body used as a battering ram, running his head into the side of the fire truck four times.
The appellee’s brother, Ed Jacks, then arrived at the scene and assisted the appellee to the hospital.
Dr. Jack Cooper, who specialized in the field of neurosurgery, testified he saw the appellee at Providence Hospital on April 7; that the appellee had clotted blood in his hair, both eyes were swollen and contused, grossly; the left side of his face was swollen and bruised; there were multiple small abrasions where the skin had been brushed away; there were no large lacerations or tissue breaks that would require sutures, but there was clotted blood about both ears and in particular the right ear; the patient was unable to get out of bed due to severe pain in the chest; he was short of breath and coughed readily and easily with a great deal of pain; there was considerable abdominal tenderness and there were marks on his body that presented a configuration of heel marks. X-rays revealed a fracture of the tenth rib, and three doctors, each in a particular field of speciality, consulted with each other in working on the appellee as a patient.
The appellee was released from the hospital on the 21st day of April, 1963, and Dr. Cooper saw him on three occasions thereafter, the last being July 12, 1963. During the subsequent visits the appellee was extremely nervous, complained of headaches and pain in his back. He also complained of pain down the right leg and over the sciatic nerve to a point below the knee. He complained of dizziness, and the doctor noticed he had some flattening of the normal lumbar curve. On July 12, 1963, he continued to limp and he experienced pain in his leg.
The appellee’s employer testified when the appellee went back to work on September 9, 1963, the appellee was not nearly the man he used to be prior to the occurrence.
One of the appellants, Charles Glenn, engaged in the affray, was a constable for Wyandotte township, and a leather blackjack or slap stick was noticed in his right hand immediately after the affray had stopped.
During the affray the fire on the appellee’s property had burned itself out.
The jury found in favor of one defendant, Hayden Wylie, and against the other defendants, Cloughley, Glenn, Dowdall and Hancock, as heretofore stated.
No question is raised in this case concerning the right of members of a fire department to enter upon private property in the discharge of their duties to put out fire. By statute actual members of a township fire department are vested with police power to prohibit persons from interfering with firemen in the discharge of their duties. (K. S. A. 80-1907; and see K. S. A. 80-1519.) For general authority on the subject see 65 C. J. S., Negligence, § 63 (110), p. 861.
The record does not indicate that the firemen in question were exercising a right on their part to arrest; however, it is indicated by the instructions, concerning which no complaint is made, they were defending the assault and battery charge on the ground they were acting in self defense or in the defense of another.
Our review on appeal will be confined to the points raised by the appellants and argued in their brief.
The appellants contend the trial court erred in permitting the appellee to call a rebuttal witness, over the appellants’ objection, and offer testimony that should have been introduced in the appellee’s case in chief.
Edward Jacks, a brother of the appellee, was permitted by the trial court to testify in rebuttal concerning the condition of the appellee at the time he first saw him. He testified about the “blood and dirt” all over his brother, and that he brushed two fellows in the circle surrounding his brother aside and went in, put his arms around him and took him out. He said he did not stay and talk to any of the appellants at the scene.
The appellants made a point in examining their witnesses that Edward Jacks, when he arrived at the scene, carried on a conversation with several of the appellants, and that the appellee left the scene of the affray under his own power.
After the appellants’ evidence was in, it appeared that a conflict existed in the evidence as to whether the appellee was in sufficient condition to leave the scene under his own power. Another brother of the appellee, Horace Jacks, testified on direct examination that Edward was holding the appellee up when he, Horace, went to the field where the affray occurred.
Edward Jacks had not previously been called as a witness by the appellee in the trial of the case; therefore, counsel for the appellee called Edward Jacks as a rebuttal witness.
The appellants argue the so-called rebuttal witness did not testify concerning any matters to rebut the appellants’ evidence; but that the appellee was allowed to reiterate and emphasize to the jury the physical condition of the appellee by way of this so-called rebuttal witness. It is argued this, being the last evidence heard by the jury, created a lasting image in the minds of the jury and thereby prejudiced the appellants in the trial of this action.
A trial judge is vested with considerable discretion in the matter of receiving rebuttal testimony. (Bennett v. LaDoux, 194 Kan. 216, 398 P. 2d 590; and State v. Neff, 169 Kan. 116, 218 P. 2d 248.) The ruling of the trial court will not be ground for reversal unless it appears that the discretion has been abused to the appellants’ prejudice. (State, ex rel., v. Stout, 101 Kan. 600, 168 Pac. 853; and see K. S. A. 60-261.)
In 29 Am. Jur. 2d, Evidence, § 250, it is said:
“. . . Rebutting evidence is that which is given to explain, repel, counteract, or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not merely evidence which contradicts the witnesses on the opposite side and corroborates those of the party who began, but also, evidence in denial of any affirmative fact which the answering party has endeavored to prove.” (pp. 298, 299.)
Examples of proper rebuttal testimony similar to that received in the instant case may be found in Canfield v. Oberzan, 196 Kan. 107, 117, 410 P. 2d 339; and Brothers v. Adams, 152 Kan. 675, 688, 107 P. 2d 757.
It can hardly be said the appellants were prejudiced by the testimony of Edward Jacks that the appellee was covered all over with blood and dirt. On direct examination in the appellee’s case in chief the doctor testified as heretofore indicated. The testimony of his brother, Horace, described the appellee as “He had no face.” His wife testified, “When I first saw him, I was shocked.” James P. Riggs testified, “and he looked like he had been through a thrashing machine.” Donald Woolery testified he was “all beat up and bloody.”
The testimony of Edward Jacks was proper rebuttal evidence and the trial court did not err in permitting him to testify.
The appellants contend the trial court erred in permitting the appellee to introduce, over their objection, certain exhibits which were not introduced at the pretrial conference.
Complaint is made of numerous exhibits which the trial court admitted in evidence, some of which were photographs.
The record discloses that a pretrial conference was ordered and conducted by the trial court, but the record does not disclose that a pretrial order was ever entered or journalized. As a result counsel for the respective parties in their briefs base their argument upon matters which do not appear in the record.
None of the exhibits concerning which complaint is made has been set forth in the record presented on appeal.
Actually, whether the exhibits in controversy were ever presented or considered by the trial court at the pretrial conference is immaterial. Absent a pretrial order controlling the introduction of such exhibits, we cannot say the trial court abused the exercise of its power of discretion in admitting the exhibits concerning which complaint is made.
Cases upon which the appellants rely (Brown v. Hardin, 197 Kan. 517, 419 P. 2d 912; and Connell v. State Highway Commission, 192 Kan. 371, 388 P. 2d 637) setting forth the purpose of the pretrial conference, do not support the appellants’ contention that the exhibits here in question were not admissible in evidence.
In Brown v. Hardin, supra, the court said:
. . The matters specifically mentioned in the pretrial statute are not exclusive. Many coruts have come to require advance identification of witnesses to be called at trial, which practice serves a useful purpose and is a proper judicial exercise. Orders entered at pretrial conference have the full force of other orders of the court and they control the subsequent course of the action, unless modified at the trial to prevent manifest injustice (K. S. A. 60-216). This latter proviso reposes in the trial court a large discretion and it is the exercise of this discretion plaintiff claims has been abused to his prejudice. . . .” (pp. 519, 520.) (Emphasis added.)
The appellants in the instant case have the burden of not only establishing that error was committed, but also that the error, if any, resulted in prejudice to them. Here the appellants have failed to establish that error was committed. (See K. S. A. 60-261.)
Under this same point the appellants’ counsel objected to an exhibit of medical records of the appellee on the ground it contains statements made by the appellee himself as to how the incident occurred and statements concerning what other doctors and nurses had found upon their examination of the appellee.
The trial court received the exhibit in evidence but said: “I’ll strike from the records any conclusions that I find here, before they are submitted to the jury.” The appellants failed to incorporate this exhibit in the record presented on appeal, and we cannot ascertain how much of the exhibit was stricken before it was submitted to the jury. Counsel for the appellee in his brief says a lot of the material was culled out of the exhibit and was never seen by the jury.
Under the circumstances the appellants have failed to make it affirmatively appear the trial court erred in the admission of this exhibit into evidence. (See Thompson v. Norman, 198 Kan. 436, 424 P. 2d 593.)
The appellants contend the trial court erred in directing the court reporter to read to the jury only the cross-examination of the appellants’ witness, Floyd McCord, upon the jury’s request to have McCord’s testimony read.
It is conceded a jury may request information after retiring to the jury room. (K. S. A. 60-248 [e]; and Williams v. Benefit Trust Life Ins. Co., 200 Kan. 51, 434 P. 2d 765.)
In the instant case the record discloses what the jurors requested as follows:
“The Court: Members of the jury, you indicated to the Court shortly before being released for the lunch period, that you wished the testimony of one witness, or at least portions of the testimony of one witness, read back. Now in the interest of brevity, can the jury tell me exactly what portions of this particular testimony you wish read to you? We have all the jury here.
“The Foreman: I can tell you some part of it; we want to know in the testimony whether he was blinded by the fire truck or not, and there was a difficulty whether he could see everything that was going on; what his testimony to that effect was.
“The Court: This testimony of the witness Floyd McCord, my trial notes indicate that cross-examination of the witness was the first reference to his position as far as visibility goes, and you might begin with the cross-examination, Mr. Husted.”
Floyd McCord was a disinterested witness called to testify for the appellants in the case, and according to his testimony on cross-examination was standing possibly 75 feet or more from the fire truck. The record discloses Mr. McCord’s ability to see what occurred during the affray was covered in his cross-examination. He stated in substance that he could not see all the details of exactly what movements were made during the affray.
The appellants in Phillips v. Carlson, 178 Kan. 206, 284 P. 2d 604, made an argument similar to the appellants here. There the court at the request of the jury, in the presence of or after notice to the parties or their counsel, required the official court reporter to read the testimony of the witness which was in dispute. When this was done, the objection was made that undue emphasis was given the testimony of this witness. But the court held the objection could not be sustained and the trial court did not err in the absence of the jury’s request to have the testimony re-read of other witnesses on the same subject.
After the cross-examination of McCord was read by the official court reporter the jury foreman responded: “As far as I was concerned, that was what I wanted to hear.”
Counsel for the appellants contends the foreman of the jury was speaking for himself only and not the other members of the jury. We find no merit in this argument. The jury foreman is the spokesman for the jury, and the trial judge is entitled to rely upon what he says. The jurors were all present when these proceedings were conducted in open court, and there is no indication in the record that any juror expressed dissatisfaction with the foreman’s statement.
Here the record discloses the requirements of 60-248 (e), supra, were fully met.
The appellants having failed to make it affirmatively appear that the trial court erred, the judgment of the lower court must be and is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action arising out of a demand by Jerry M. Heiberg (plaintiff-appellee) against the School Board of Hoxie Unified School District No. 412, Sheridan County, Kansas, (defendant-appellant) for reimbursement of transportation costs incurred by Mr. Heiberg in transporting his kindergarten aged child out of the Hoxie School District into the Hill City Unified School District No. 281, located in Hill City, Kansas, where Mr. Heiberg is employed.
The only question presented is whether the Hoxie School District is required to furnish transportation for the plaintiff’s child to and from the Hill City School District.
The facts have been stipulated.
Mr. Heiberg resides on the west edge of the northeast quarter of section 19, township 8, range 25 in Graham County, Kansas, which residence is in the Hoxie Unified School District No. 412. The authorities of the Hoxie School District were not informed of the fact that a kindergarten aged child, Tanya Sue Heiberg, resided in the above residence until September 13, 1966, when Mr. Heiberg sent them a letter claiming reimbursement for transportation costs for transporting his daughter to the Hill City School District at Hill City. At no time did Mr. Heiberg seek to enroll his child with the Hoxie School District.
On or about the 20th day of September, 1966, the Hoxie School District offered and continues to offer to furnish transportation for Mr. Heiberg’s child to attend the Hoxie School District as provided by K. S. A. 1965 Supp. 72-67,116 and K. S. A. 72-617. The Hoxie School District has a bus route in that area.
Tanya Sue Heiberg is attending the Hill City Unified School District No. 281 at Hill City, Kansas, and Mr. Heiberg or his agent transports her daily, making two round trips, at such times as school is in session.
No agreement has been made or entered into between the Hoxie School District and the Hill City School District as contemplated by K. S. A. 72-6757 or as contemplated by any other pertinent statute.
The Hoxie School District does not have a bus route established to the Helbergs’ home, the closest route being from Studley, Kansas, a distance of approximately three miles from the Helbergs’ home by the most direct route.
Mr. Heiberg has not applied for or sought such an agreement as contemplated by K. S. A. 72-6757 or as contemplated by any other pertinent statute.
In the stipulation filed with the trial court Mr. Heiberg admitted he was relying upon K. S. A. 72-617, 72-702 and 72-704, and related cases. The Hoxie School District admitted that it was relying upon K. S. A. 72-6757, K. S. A. 1965 Supp. 72-67,116 and K. S. A. 72-617, and related cases.
The trial court in its memorandum opinion highly summarized the facts which showed that a kindergarten aged child, who was a resident of Graham County and of the Hoxie Unified School District No. 412, located principally in Sheridan County, attended school at Hill City in Graham County; that the Hoxie School District maintained a kindergarten only at Hoxie, Kansas, and that the father of the child was employed by Graham County at Hill City, Kansas. The only two schools available to a child of kindergarten age residing near Studley would be the kindergarten maintained by the Hoxie School District at Hoxie in Sheridan County, and the kindergarten maintained by the Hill City School District located at Hill City in Graham County. Both the schools were located approximately seventeen miles from the Helbergs’ residence.
The trial court in its memorandum opinion held:
“. . . In this case the only statute controlling is K. S. A. 72-621, which provides that the school district shall either furnish transportation or pay as provided in that statute not less than 5 cents per mile for two trips per day.
“The Court in addition to the facts that are stipulated finds that while the Board is given discretionary powers in providing transportation for high school and grade school students, it does not have discretionary power so far as kindergarten children are concerned. This Court takes judicial knowledge of the fact that transportation of a five-year old child in Western Kansas to within five miles of the child’s home is worse than no transportation at all. The weather situations, that are certainly matters of which the Court can take judicial notice, are such that the Legislature in its wisdom was wise in the enactment of such a statute as K. S. A. 72-621, wherein a Board is required to furnish transportation. The offer of the defendant to furnish transportation as set out in this case amounted to a refusal to comply with K. S. A. 72-621.”
The trial court thereupon entered judgment for the plaintiff for the amount in controversy, which the parties had stipulated, and appeal has been duly perfected by the Hoxie School District.
By a process of elimination it is apparent the only statute controlling the disposition of this case is K. S. A. 72-621.
Both K. S. A. 72-702 and 72-6757, which deal with the transportation of students attending a school outside their district, provide that the district may make an agreement to accommodate students who reside at inconvenient or unreasonable distances from the school maintained by such district with another district for the attendance of such students, and only after this has been done shall the child be admitted under the agreement. Both statutes provide that the sending district shall provide transportation only after the agreement has been made and the transportation shall then be as provided by law. It was stipulated that no agreement had been entered into between the Hoxie and the Hill City School Districts. Therefore, these statutes are not applicable, the conditions precedent not having been fulfilled.
K. S. A. 72-704, upon which the appellee relies, gives a Graham County resident the right to attend a school in the county of his residence. It provides in part:
“An elementary school pupil residing in Kansas may attend any elementary school in the county of his residence. . . .”
It is unnecessary to determine whether a child eligible to attend kindergarten is an elementary school pupil. Assuming that such child is an elementary school pupil, this statute does not purport to deal with the transportation of a child to or from school, nor does it purport to deal with payment or the costs of such transportation.
The only statute to which we have been cited which is left for consideration by the court is K. S. A. 72-621. It provides in pertinent part:
“That if the district board of any school district shall not provide or furnish transportation for all or any of the elementary or kindergarten pupils who reside in such district at least two and one-half miles, by the usually traveled road, from the public school which they attend in such district, then the governing body of such school district shall pay to the person transporting any such pupil not provided or furnished transportation, mileage at the rate of five cents per mile for each mile actually traveled by the usually traveled road in transporting such pupil to and from the public school attended: Provided, That mileage shall be paid for two round trips per day if two round trips are actually made in conveying such pupil to school once and returning him home once: . . .” (Emphasis added.)
This statute has been held by the court to be mandatory and not discretionary. It compels the school district to pay the persons transporting the pupil or pupils if the school district does not itself provide or furnish transportation. (Kimminau v. Common School District, 170 Kan. 124, 223 P. 2d 689.)
It is to be noted, however, 72-621, supra, does not fit the appellee’s situation.
The words “in such district,” heretofore emphasized, require that the pupil residing in the district which does not provide or furnish transportation shall also attend the public school in such district. As applied to the facts in this case, the kindergarten student of the appellee, who resides in the Hoxie School District more than two and one-half miles from the school maintained by the Hoxie School District at Hoxie, must attend the public school in the Hoxie School District before the governing body of such school district is required to pay the person transporting such student. Here the appellee’s daughter attends school in another district, the Hill City School District, for which transportation charges are sought against the Hoxie School district.
The appellee relies upon familiar rules of statutory construction, citing cases, and considering all of the statutes upon which he relies concludes by arguing:
“The statutes seem clear that the Legislature intended to educate the State’s children, that allowance for their transportation be made, and that in certain cases, as here, that if the school did not furnish such transportation then they would be required to reimburse the parent for such transportation.”
The authority of a school'district to transport pupils beyond the district has heretofore been considered in Carothers v. Board of Education, 153 Kan. 126, 109 P. 2d 63. The court there held, in effect, that transportation statutes are to be strictly construed and cannot be interpreted to give implied authority as the court below has done in the instant case. There the court held that statutory power of the district board of the school district to transport students living in its district to cities and towns outside the district cannot be implied.from a statute which provides only for transportation of pupils to schools within their own district.
We hold 72-621, supra, does not authorize the Hoxie School District to pay transportation charges for the appellee’s daughter to attend kindergarten in the Hill City School District, which is outside the Hoxie School District, and authority to do so cannot be implied from the statute.
All of the statutes except K. S. A. 72-6757 considered in this opinion and applicable to the school year 1966-1967 have been repealed (K. S. A. 72-617; 72-621; 72-702; 72-704; K. S. A. 1965 Supp. 72-67,116).
The judgment of the lower court is reversed.
Fromme, J., not participating. | [
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|
The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment and sentence following a plea of guilty to robbery in the first degree.
The defendant was charged in two counts with robbery in the first degree and carrying a pistol after having been previously convicted of a felony. The second charge which was dismissed will receive attention later in considering defendant’s mental capacity to assist in his defense.
The defendant entered a plea of guilty to the charge of first degree robbery and was sentenced to imprisonment in the state penitentiary for a term of not less than ten years nor more than twenty-one years. The sentence was to run concurrently with any sentence which might be imposed because of the violation of defendant’s parole while under sentence for a previous conviction. The parole violation is not material to the present controversy.
The defendant has now appealed from the conviction and sentence on his plea of guilty.
The appellant first contends:
“The Appellant in the instant ease was not given a sanity hearing prior to his plea of guilty on December 6, 1967, for the purpose of determining whether or not the Appellant was legally sane and, therefore, capable of assisting in his own defense and standing trial.”
There is no indication in the record of any insanity on the part of the appellant. The record discloses no abnormal behavior which would have raised a question as to his mental capacity. In fact, defendant’s behavior at the time he entered his plea of guilty would indicate a rather sharp mentality with considerable reasoning ability. These facts will be presented in detail when we consider the next issue.
A district court need not presume insanity on the part of every accused that is brought before him for prosecution. It is only where unusuál behavior indicates mental incapacity that the trial court has a responsibility to investigate. Where there is no request and no unusual behavior on the part of the defendant there is no obligation on the part of the trial court to appoint a sanity commission. Whether a district court on its own initiative should order an inquiry to determine the mental condition of the accused is a matter addressed to the trial court’s discretion. (State v. Kelly, 192 Kan. 641, 391 P. 2d 123; State v. Daegele, 193 Kan. 314, 393 P. 2d 978; State v. Wheeler, 195 Kan. 184, 403 P. 2d 1015; McQueeney v. State, 198 Kan. 642, 426 P. 2d 114.)
Appellant next contends:
“The Appellant was unable to assist in his own defense for the lack of a proper education and for the further reason that prior to his arrest he had been on drugs and when they were no longer available to him after his arrest he became emotionally unstable, incoherent and incapable of assisting in his own defense.”
We would waste very little space on appellant’s suggestion that he was unable to assist in his own defense because of lack of education. We have not yet reached the point in the modem application of the Fifth Amendment to the Constitution of the United States where an accused must be dismissed from a criminal charge because of lack of a formal education.
Neither do we find anything in the record which would indicate that because of the effect of drugs the defendant was emotionally unstable, incoherent and incapable of assisting in his own defense.
There is nothing in the record to indicate the appellant was a drug addict or was suffering from withdrawal symptoms at the time he entered his plea of guilty.
Appellant was in jail from March 3, 1967, until April 20, 1967, when he was released on bond. During that period there is no indication that he had taken drugs or was having withdrawal problems. He was picked up on October 5, 1967, on a parole violation warrant for another offense, and was held in jail until his plea of guilty on December 6, 1967. The record discloses no complaint during that period of drag withdrawal symptoms.
When the appellant appeared before the district court to enter his plea of guilty he appeared mentally alert and quite capable of comprehending what was taking place. This was disclosed by the colloquy between the trial court and appellant at the time of the plea.
On count two of the information charging felony possession of a pistol, as defined by K. S.A. 21-2611, the appellant, when asked by the court for his plea, stated: “I’m not quite sure about that.” The appellant then asserted that the gun was a blank pistol and he questioned whether it could be the basis of a charge of possession of a pistol. The state then moved to dismiss the charge of felony possession of a pistol.
The trial court inquired of appellant if he was pleading guilty to robbery in the first degree because he was guilty or because he had been offered or promised something. The appellant replied: “I’m pleading guilty because I am guilty.”
Subsequently, the trial court inquired of appellant if he knew of any legal reason why sentence should not be imposed and the appellant replied in the negative.
Appellant’s alertness and comprehensiveness is again noted in his conduct when the sentence was being considered which is disclosed by the record as follows:
“The Court: Let the record show this sentence will run concurrently with any sentence that remains to be run on his parole violation. Also, he is to be given credit for the statutory time of 90 days that he has done in the county jail awaiting disposition of this matter.
“Mb. Stumbo: I also think, Mr. Olander, that we would like to have the old charge preferred in the serving of the time.
“Mr. Olander: What do you mean?
“Mr. Cox [the appellant]: You see, Judge, if I go up on the new charge, I’ll have to do six years and something, but if I go up on the other charge, if I do time on the old charge rather than the new charge, I can be up for parole in ’70 or ’71.
“The Court: I am running them concurrently—
“Mr. Cox: What I meant was, if it was possible to recommend that I do the time on the old charge.
“The Court: That was in another Court. I think what you want to do is talk to the Parole Board in connection with that matter. . . .”
There is no merit in appellant’s contention that his mental condition was such that he was unable to assist in his defense.
The appellant last complains that “at the time of his arrest he was not advised of his right to remain silent or his right to counsel or that anything he said might be used against him.”
This issue would appear to be a straw at which the appellant grasped after he tired of serving time under his plea of guilty. The record is absent anything which would present a legitimate issue.
We are not informed when appellant was arrested or when counsel first saw him. Although we are not informed when the preliminary hearing was held, we are informed that plaintiff had counsel at his preliminary hearing, at his arraignment and when he entered his plea of guilty.
There is no suggestion that appellant was asked any questions or that his rights were in anyway prejudiced by what took place between the time of his arrest and his plea of guilty. Certainly there was nothing presented to the trial court which occurred after the arrest and before appellant had an opportunity to consult with his attorney which would prejudice his constitutional rights in any way.
Before a defendant can complain that he was not timely warned of his right to remain silent, that anything he said might be used against him or of his right to counsel, there must be a showing that he was questioned, made incriminating statements, or suffered some disadvantage or impairment of his rights. No such claim is made.
The appellant entered his plea of guilty “because he was guilty.” The veracity of the plea is not challenged. This eliminates any claim of coercion or intimidation. Procedure, prior to the plea, which might go to the question of appellant’s guilt or innocence is no longer material. (State v. Kilpatrick, 201 Kan. 6, 15, 439 P. 2d 99.)
The judgment is affirmed.
APPROVED BY THE COURT. | [
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|
The opinion of the court was delivered by
Fromme, J.:
This appeal is from two summary judgments entered in favor of defendants, Mobil Oil Corporation and Mobil Pipe Line Company, in two separate cases. The cases were consolidated by stipulation before the appeals were docketed in this court. (See Rules of the Supreme Court, 197 Kan. LXVII, Rule No. 13 (a).)
These cases are presented for review on one record. The decision here will determine the appeal in each case. (Case No. 28,314 and Case No. 28,329 in the District Court of Butler County, Kansas.) The claims for relief arose during a flood which occurred on June 5,1965, at Augusta, Kansas.
The plaintiffs filed separate petitions claiming relief in damages against the defendants. In each case they allege the defendants stored upon their premises certain dangerous substances, i. e. oil and acid, which were used in operating a refinery near the city of Augusta. They further allege defendants negligently permitted or caused these dangerous substances to be released from storage facilities located at the refinery. They allege these substances came upon the property of the plaintiffs causing damages to plaintiffs’ real and personal property for which defendants are strictly liable. A demand for jury trial was filed with each petition.
The defendant corporations did not file answers. No pretrial discovery depositions were attempted. The defendants filed motions for summary judgment in both cases stating there was no genuine issue as to any material fact. They asked for judgment as a matter of law. In support of these motions they attached six affidavits. Counter affidavits were filed by plaintiffs. The court granted summary judgment in each case in favor of the defendants.
Without detailing defendants’ affidavits they generally tend to support the defenses which defendants argue before this court, i. e. (1) plaintiffs’ damages were caused by an “act of God”, an unprecedented flood, and, (2) defendants did not permit or cause dangerous substances to be released.
As previously stated, plaintiffs filed counter affidavits. These affidavits generally tend to indicate oil and acid coming from the refinery area were carried on the flood waters and damaged plaintiffs’ property.
Maps and certified weather bureau reports were filed by defendants. These indicate the area affected by the flood is located between the Walnut and Whitewater rivers at Augusta, Kansas. They indicate the flood crest on the day in question was several feet higher on the Walnut river than on previous occasions and the flood crest on the Whitewater river was less than on its previous high crest in 1944.
The motions for summary judgment were sustained in both cases on the basis of the facts contained in these affidavits, maps and weather bureau reports. The court made a finding there was no genuine issue as to any material fact remaining in controversy because the occurrence giving rise to the claims was due to an unprecedented flood, an “act of God”, for which defendants were not responsible.
The plaintiffs now challenge the lower court’s judgments on two grounds. First, an “act of God” is no defense to claim based on the theory of strict liability and, second, there were genuine issues of material fact unresolved.
The plaintiffs’ first claim of error is premised on too broad a statement of the law. Our cases recognize the theory of strict liability which had its birth in Fletcher v. Rylands, L. R. 1 Exch. 263, but the doctrine has certain limitations and consequences. (See Helms v. Oil Co., 102 Kan. 164, 169 Pac. 208; Berry v. Shell Petroleum Co., 140 Kan. 94, 33 P. 2d 953; State Highway Comm. v. Empire Oil & Ref. Co., 141 Kan. 161, 40 P. 2d 355; Klassen v. Creamery Co., 160 Kan. 697, 165 P. 2d 601.)
Generally, strict liability is confined to those consequences which lie within the extraordinary risk created. The requirement of foreseeability of the consequences places a limitation on the liability. When harm results from the intervention of an unforeseeable force of nature liability does not fall on the defendant. The proximate or direct cause of plaintiffs’ damage stems from the intervening cause. (Gerber v. McCall, 175 Kan. 433, 264 P. 2d 490; Fairbrother v. Wiley’s Inc., 183 Kan. 579, 331, P. 2d 330; see also Prosser, Law of Torts [2nd Ed.], Extent of Liability, p. 338.)
Whether a flood is an “act of God” as known in the law depends upon the character and extent of the flood. Not every flood is an unforeseeable intervening force of nature. An “act of God” as known in the law is an irresistible superhuman cause, such as no reasonable human foresight, prudence, diligence and care can anticipate and prevent. (Garrett v. Beers, 97 Kan. 255, 155 Pac. 2; see also Fairbrother v. Wiley’s Inc., supra; 1 Am. Jur. 2d, Act of God § 3, p. 678 and 1 C. J. S., Act of God, p. 1425.)
In Garrett v. Beers, supra, it is said:
. . There was testimony that the May flood in 1910 which caused the damage was not unprecedented; that ‘many a time’ such heavy rains had fallen before. Clearly this was a question for the jury. . . .” (97 Kan. p. 258)
In the present case the flooding occurred at the confluence of the Walnut and Whitewater rivers. The weather bureau charts seem to indicate the crest on the Walnut was higher than at any previous time, while the crest on the Whitewater was below the previous high in 1944. Whether this particular flood constituted an “act of God” as known in the law is a question of fact for the jury.
Under the allegations in the petitions defendants are charged with negligently permitting or causing these dangerous substances, oil and acid, to be released from storage facilities. If these allegations are true the negligent acts of the defendants may have continued after the flooding began in the refinery area. The affidavit of the refinery manager indicates flood waters were coming into the refinery when he recommended the plant be shut down.
Plaintiffs argue that defendants in shutting down the refinery released oil and acid into the flood waters and these were carried onto plaintiffs’ property. The defendants argue that no oil or acid was released. This remains an issue between the parties.
An “act of God” to be a defense must be an intervening cause which was not foreseeable and the consequences of which could not be prevented. If the defendants released these substances into the flood waters the flood was not an intervening cause. The release of these substances if intentional and contemporaneous with the flooding would be the direct cause of the damages. The flood in such case may have contributed to the damage but defendants would not be relieved of liability. The consequences of their acts were foreseeable.
The questions of foreseeability and causality are questions of fact for the jury. (See cases 4 Hatcher’s Kansas Digest, [Rev. Ed.] Negligence §74.)
Under the posture of these cases at the time motions for summary judgment were filed the cases were not ripe for summary judgments. The attack upon the petitions is not because of insufficiency of their allegations. Defendants were attempting to present and resolve issues which should have been presented by answer. (See K. S. A. 60-208 (b) and (c).)
Ordinarily a motion for summary judgment should not be granted before the issues are made up and so long as pretrial discovery remains unfinished. (Brick v. City of Wichita, 195 Kan. 206, 211, 403 P. 2d 964.)
On the hearing of a motion for summary judgment there should be no attempt to resolve conflicting questions of fact. (Schneider v. Washington National Ins. Co., 200 Kan. 380, 387, 437 P. 2d 798.) The party who moves for a summary judgment has the burden of establishing without a doubt there is no genuine issue of fact. Any doubt as to the existence of such an issue must be resolved against the movant. (Herl v. State Bank of Parsons, 195 Kan. 35, 37, 403 P. 2d 110.)
A summary judgment proceeding is not a trial by affidavits, and the parties must always be afforded a trial when there is a good faith dispute over material facts. (Brick v. City of Wichita, supra.)
Whether a particular flood is of such extraordinary and unprecedented nature as to constitute an “act of God” is a question of fact for the jury. (Garrett v. Beers, supra.)
The question of foreseeability and causality of a claimed intervening cause ordinary rests in the province of the trier of the facts. (Secrist v. Turley, 196 Kan. 572, 412 P. 2d 976.)
The present motions were submitted to the trial court before answers were filed and before pretrial discovery was finished. Issues ■of fact should not be made up between the parties on affidavits.
Two cases heavily relied upon by defendants, should be distinguished. The defendants submit the flood was an “act of God”, an intervening cause, which on the basis of Gerber v. McCall, supra, relieves any liability arising from the escape of oil and acid from defendants’ premises. In Gerber it was admitted the flood was an “act of God”. The plaintiffs there contended their damages “were the result of an act of negligence cojoined with an Act of God, which combined to produce the resulting damage”. When all parties admit a flood is an “act of God” as known in the law it no .longer remains a material fact in issue.
The defendants contend the case of Zampos v. United States Smelting Refining and Min. Co., 206 F. 2d 171 (C. A. 10, 1953) is •authority for upholding the summary judgments in the present ■cases. In Zampos the defendant filed answer pleading the defense of intervening cause, “act of God”. Pretrial discovery was completed and depositions as well as affidavits were used to pierce the formal allegations of the petition. The decision was made upon the uncontroverted facts in affidavits, depositions and admissions which left no genuine issue for trial. A further distinction is apparent since the cause of plaintiffs’ damage in Zampos was water which had accumulated in an old abandoned mine without the knowledge of the defendant. The court held the rule of strict liability did not apply since defendants had no knowledge of the water being on its property.
Neither Gerber nor Zampos has the weight defendants attribute to them in our present case.
As previously pointed out genuine issues of material fact remain to be determined by the trier of fact. The trial court erroneously determined those questions on the basis of affidavits.
The summary judgments in favor of defendants are reversed. The cases are remanded to the trial court for further proceedings in accordance with this opinion. | [
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The opinion of the court was delivered by
Horton, C. J.:
This action was here at the July term of the court for 1877, and is reported in 18 Kas. 508. It is again brought to this court by the plaintiffs in error to obtain another review of the proceedings liad in the court below, which resulted in a judgment of that court against them iu the new trial granted by this court. Many exceptions were taken on the trial, and several alleged errors are set forth in the petition in error, but in the argument contained in the brief of their counsel, the only alleged errors to which our attention is called or reference is made, are the refusal of the court to instruct the jury to find for the defendants, (plaintiffs in error,) and the direction of the court concerning the tender to Blankenship and the acceptance of the same. The latter instruction was as follows: “If they (the defendants in error) had the legal title to the land in controversy, and while so holding the legal title, they were induced by false and fraudulent representations on the part of Blankenship to sell to him, without sufficient consideration, the premises; that after discovering the fraud and before commencing this action they tendered to Blankenship all they had received from him on such sale, and if such tender was received and accepted by Blankenship, then the equities of the plaintiff are prior and superior to those of the defendants, (plaintiffs in error;) and you should find for the plaintiffs, unless you also find that the plaintiffs by some act or word of theirs are estopped from setting up their equities, if any they have.”
The particular point made concerning the instruction refused and the instruction .given is, that there was not a valid or a sufficient rescission of the contract to entitle defendants in error to recover. The testimony shows that the agreement to sell the property in controversy to Blankenship by the Smiths was made in the summer of 1871. The fraud of Blankenship was discovered in December 1871. On January 5th, 1874, before this suit was commenced, the defendants in error tendered to Blankenship all they had received from him on the sale of their land, and he accepted the same. Counsel for plaintiffs in error say that the delay of the defendants in error had been so great that the time for rescinding the contract had passed long before it was made, and submit, “that as a reasonable time for rescission is a mixed question of fact and law, and that after the facts are found the law makes the application and determines whether the time was reasonable or not, the law under the circumstances in this case is, that one month would be more than a-reasonable time; and if one month would not, six would; and if six would not, one year would; and if one year would not, one year and a half would; and if that would not, twenty-three months would; and consequently, as there was no dispute in the evidence as to the facts, the most of them being- proved by Smith himself, the court erred in not instructing the jury to find for the defendants, and also in refusing them a new trial.”
It is generally true that where anything of value has been „ received by the defrauded party, he must not only tender back all he has received, but the rescission must be prompt or within a reasonable time after the fraud is discovered; but mere delay in rescinding the fraudulent contract does not take away the right — such delay being material principally as it furnishes evidence of an election to affirm. The rule is. well stated in a late English case, as follows:
“ In such cases the question is: Has the person on whom the-fraud was practiced, having notice of the fraud, elected" not to avoid the contract, or has he elected to avoid it, or has he made no election? We think that so long as he has made no election, he retains the right to determine it either way subject to this, that if in the interval whilst he is deliberating, an innocent third party has acquired an interest in the property, or if in consequence of his delay the position of the wrong-doer is affected, it will preclude him from exercising his right to rescind. Lapse of time without rescinding would furnish evidence that the defrauded party has determined to affirm the contract, and when the lapse of time is great, it probably would, in practice, be treated as conclusive evidence to show that he has so determined.” (Clough v. Railway Company, 7 Ex. Law Rep. 26.]
In this case, all the parties had notice of the intention of the defendants in error to avoid the contract with Blankenship as early as April 8th, 1872, when the action was commenced in Lyon county to cancel the blank deed signed by ■ the Smiths and filled up without their knowledge or consent to Wicks and Mays; and as said Blankenship accepted back the property given by him for the land in dispute, such acceptance waives as to him, at least, any defense or claim that there was too great delay in making the rescission. It is even, questionable whether the plaintiffs in error can set up and insist upon, as a defense, the right of Blankenship to have a. return of his property from the Smiths, or the delay in their making such return, unless by this action the plaintiffs-in error have in some way been prejudiced. (Stevens v. Austin, 1 Metc., 557; Ladd v. Moore, 3 Sandf. S. C. N. Y. 589; Pearse v. Pettis, 47 Barb. 276.)
Again, upon the testimony it is doubtful whether the property received from Blankenship under the contract of sale-was of any value or possible benefit. If it was absolutely worthless, no tender or return of it was necessary. (Bank v. Peck, 8 Kas. 664; Smith v. McNair, 19 Kas. 330.)
In whatever light we may view the subject, this delay in. no’ way affected plaintiffs in error. As before stated, they had notice in April, 1872, of the election of the Smiths to-rescind the contract with demand of the property. All the-interest the plaintiffs in error acquired, they became possessed of in the fall of 1871, and prior to the discovery of the fraud of, Blankenship. As they purchased merely an equitable title, they were bound to take notice of all counter-equities which were outstanding in favor of the defendants in error, who held the legal title, and, as Wicks and Mays were claiming only under a mere equitable title, they were not bona fide purchasers, so as to defeat prior equities existing in in favor of said Smith and wife. (Stout v. Hyatt, 13 Kas. 232.)
Counsel for plaintiffs in error claim, however, that as Solomon Smith, on his return from a fruitless search in Kentucky for the real estate which the conveyances and assign mente of Blankenship apparently transferred to him, accepted from Blankenship in December, 1871, as part payment for his expenses to Kentucky, a deed of a lot in Emporia of about the value of $25, which Blankenship had received from Wicks and Mays in part payment for the land in controversy; that this was an affirmance of the contract, or at least such action as estopped any rescission on the part of the defendants in error. This position is not tenable. The land for the possession of which this action was brought in the court below, was the homestead of the Smiths. It could not be alienated without the joint consent of the husband and wife. Her consent to the contract with Blankenship was obtained by fraud. Being one of the defrauded parties, and the property being, a homestead, she had-the right, on discovery of the fraud, to reject the contract, to avoid the sale. She exercised that right. She did not participate in the acceptance of the deed from Blankenship of the town lot in Emporia. Construing the finding of the jury under the issues in the case and the instructions of the court, it does not appear that the husband in that matter acted with her consent or knowledge, or under dii’ection or authority. He was not her agent. She never consented to any affirmance of the fraudulent contract. She elected to- disaffirm it, and the independent and separate act of her husband could not defeat her election to recover the homestead, nor take from her the interest she had in it. But the conduct of the husband is almost if not fully justifiable. He accepted the conveyance of the town lot in part payment of his own personal expenses, expended in a wild hunt, under the direction of Blankenship, after lands which either had no existence or were almost worthless when found, and at a time when he was without actual knowledge of all the facts connected with the condition of affairs under which Wicks and Mays had possession of his homestead. On October 5th, 1874, he tendered back to Wicks and Mays a quitclaim deed for the town lot, and afterward deposited it in court to be delivered to said parties. Before the commencement of the suit, Blankenship had accepted all the property he had turned over on the sale to the Smiths. Thus, so far as he had been able, he has placed all the parties in statu quo.
~We conclude that there was no error in the direction of the court, prejudicial to Wicks and Mays, concerning the rescission of the fraudulent contract, and therefore the judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The plaintiff in error, defendant below, claims that the verdict of the jury upon which the judgment of the court below in this ca'se was rendered, was found by the jury in the following manner, to wit:
“The jury in said cause, while in the jury room deliberating on' their verdict, agreed that each juror should mark down the amount he thought the plaintiff below, defendant in error, ought to recover from the defendant as damages, and that then such amounts should be added together and the aggregate sum thereof should be divided by twelve, the whole number of jurors present, and that the result or quotient should be their verdict; and such estimate, so obtained and arrived at, the said jury returned in writing, duly signed by their foreman, into open court, and declared the same to be their verdict, and was received by the court, and the jury was thereupon discharged.”
Upon this ground the defendant,, who .is now plaintiff in error, moved for a new trial. On the hearing of the motion, the defendant read iu evidence an affidavit signed and sworn to by five of the jurors, stating that the verdict was found in the above manner. The plaintiff, now defendant in error, then read in evidence two affidavits. The first was an affidavit of one of said five jurors, who stated that he did not understand when he made his first affidavit that he swore as .above stated, and also that the verdict was not so found or obtained as above stated. The other affidavit was signed and sworn to by five of the jurors who tried the cause, and they stated that the verdict was not.found or obtained as above stated, but was found fairly after due deliberation and discussion. And, in explanation, they further stated:
“That the jury, soon after they had retired to consider of their verdict, did agree that each one or member of said jury .should vote or put down in writing just what he would like or desire the verdict to be, and they did so, some voting a large amount, some small, and some nothing, and aggregated the amount and did divide the same by the number 12; but did not agree in advance or at any other time that the said ■quotient or result of said vote of expression of opinion by said jury, should be the verdict of said jury. Said vote was taken to ascertain the opinion of each member of said jury, and a verdict was [not] arrived at by such means or aggregation. When said amount was ascertained by adding up the said several amounts which each juror so voted, the jury refused to find the same as their verdict, but did finally agree upon another and different amount, which was the verdict rendered in said cause and was finally agreed upon by all, rafter a long and careful consultation; and when said verdict was finally and without lot or aggregation agreed upon by ■each one of said jurors, it was then returned into court in the usual manner.”
For the purposes of this case we shall assume without deciding the question, that all the foregoing affidavits were rightfully and properly received and considered by the court below. (Perry v. Bailey, 12 Kas., 539; Wright v. The I. & M. T. Co., 20 Iowa, 195, 210; Hendrickson v. Kingsbury, 21 Iowa, 380; Cowles v. Chicago, R. I. & P. R. R. Co., 32 Iowa, 515.). Numerous cases might be cited showing that affidavits ■of jurors cannot be received to impeach or overthrow their verdict. 9 U. S. Dig. (E. S.) 523, ¶323, et seq.; 1 Graham ■& Waterman on New Trials, 111 to 116. And still we think no error is shown requiring a reversal of the judgment ■of the court below. The preponderance of the evidence shows that the verdict was fairly and properly found. First, We have the presumption in favor of the jurors that they did their duty. ¡Second, We have the presumption in favor of the. court below that it decided correctly. Third, We have the affidavits of six jurors against four that, the verdict was properly found. Under the circumstances of this case, ■we must presume that the facts with reference to the finding .of said verdict were just as they were stated to be by the five jurors wbo made an affidavit in support of their verdict. And presuming the facts to be just as said five jurors stated them to be, we think the ruling of the .court below in sustaining the verdict must be affirmed. The jury never agreed that the result obtained by aggregating, the twelve .separate amounts voted by the jurors respectively and dividing such aggregated amount by twelve, should be their verdict, and it was not their verdict. The verdict was the result of careful ■consideration and deliberation, and differed in amount from the result obtained by said voting, aggregation and division. Of course, if the verdict had been the result of such voting, aggregation and division, it should be set aside. And such voting, aggregation and division are not to be commended, although it was never intended that the result thereof should be the verdict or the basis of the verdict of the jury.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action to recover certain real estate, brought by the plaintiffs in error, as heirs of one Merrill Davis, deceased, against the defendant in error, A. J. Turner. The plaintiffs claimed the lands as the heirs of the intestate, and by deeds from other heirs. The title of the defendant was based upon the deed of the administratrix of the intestate, by virtue of proceedings had in the probate court of Jackson county, at its July term, 1864.
The material questions in the case relate to the validity of the proceedings of the probate court, and the form of the conveyance of the administratrix. August 7th, 1861, Merrill Davis and his wife Frances Davis executed their mortgage to Jason Richardson on certain real estate in Jackson county, including the premises in controversy, to secure the note of said Merrill Davis for $330.50, with interest at fifteen per cent, per annum.
July 19th, 1863, Merrill Davis died, leaving the note unpaid. August 29th, 1863, the widow, Frances Davis, was appointed administratrix of the estate of the deceased.
June 15th, 1864, Jason Richardson, mortgagee, sold, assigned and transferred in writing his mortgage of August 7th, 1861, against M. and F. Davis, to one John Armstrong. October 5th, 18fi4, Frances Davis, administratrix, executed to said John Armstrong a conveyance of the land in dispute. This deed was based upon proceedings had in the probate court of said Jackson county, under the provisions of §1, ch. 60, laws of 1864. March 15th, 1871, the defendant purchased the property from a grantee, deriving title under Armstrong.
I. It is contended that no competent evidence was introduced upon the trial to prove the appointment of Frances Davis as administratrix, because the original letters of ad ministration and bond of the administratrix were not produced, nor any certified copies thereof. The proofs to establish this fact were the records of the probate court, showing her appointment August 28th, 1863, as such administratrix, in these words:
“Now at this day comes Frances Davis-in her own proper person, and presents, that Merrill Davis, late of the county of Jackson and state of Kansas, deceased, died intestate, having whilst living and at the time of his death, goods and chattels, lands and tenements, which should be disposed of according to law. She asks, therefore, that an administrator should be appointed to settle and dispose of said estate according to law. The court, upon due deliberation and being fully advised in the premises, appoints Frances Davis to be administratrix of all and singular the goods and chattels, rights and credits, lands and tenements, which were the property of the said Merrill Davis at the time of his death; and the court orders that the said Frances Davis execute a bond in the penal sum of one thousand dollars.”
The bond record of said court, containing the record or copy of the bond of such administratrix is in the usual form, and is in the sum of $1,000, and signed by the said Frances Davis and two sureties, and the recognition by the probate court of said Frances Davis after said date as the administratrix of the estate, in the usual form and manner. Under §12, eh. 87, laws of 1870, the books and record required by law to be kept by any probate judge may be received in evidence in any court; hence, we think upon this testimony a sufficient showing was had to prove the appointrnent of the widow as administratrix. It is true, ... the letters of administration do not seem to have been of record, nor was the original bond, which is required to be preserved in the regular files of the court, presented; but as evidence was afterward produced that the probate judge in office during all these proceedings loosely and imperfectly kept the records, the letters may have been delivered without being recorded, and the original bond, lost. In any event, none of these papers were in the possession of the defendant, nor was he the legal custodian of them, and the court rightfully received the testimony offered.
II. It is claimed that the conveyance of October 5th, 1864, is void, because the records of the probate court show no application for any transfer or conveyance of the premises to the mortgagee or his assigns, nor any order allowing, authorizing, or approving the deed. As the case was tried by the court below without a jury, upon parol evidence, and the court found generally in favor of the defendant and against the plaintiffs, it will be presumed that the court found all the facts in favor of the defendant, so far as there was sufficient evidence to prove them. (Cory and Kimball v. Wirth, ante, p. 10.) And upon this presumption we may justly assume that the court found from the evidence of W. S. Hoaglin, the probate judge in 1861-4, that a proper application in writing was presented and filed with said officer at the July term of the court, 1864, under §1, ch. 60, laws of 1864, asking the court to order the administratrix to convey to John Armstrong, the assignee of the mortgagee, all the right, title and interest of the estate of Merrill Davis, deceased, to said property, and that thereon the court made in writing in due form a valid order allowing such application, and ordering a conveyance within the provisions of the statute; that thereafter the said deed of October 5th, 1864, was executed, and thereon such conveyance operated as an extinguishment of the claim of the mortgagee and his assign under the said mortgage of August 7th, 1861. As it was satisfactorily shown by the testimony that the records and other papers of the probate court, during the time of the administration of this estate, were in great confusion and very negligently kept, and many of them were not in the office, this warranted the presumption that the application for sale or transfer, and the record of the order of the court granting it, had been lost, and justified the admission of the testimony of the ex-probate judge, showing what proceedings did actually take place before him in this matter, and the contents of the written application and orders made by him. (Jackson v. Crawford, 12 Wen-
dell, 533.) It is immaterial whether the application ^ 1 1 f°r the conveyance was signed by the administratrix or the assignee of the mortgagee. If signed by the assignee, the statute was literally complied with. If the administratrix made the application, and thereafter the assignee of the mortgagee accepted the deed under such application and order of the court in satisfaction of his claim, he virtually made the act of such administratrix his own, and there was a substantial compliance with the provision of the statute.
III. It is asserted that the deed of conveyance of October 5th, 1864, is inoperative, and does not convey the title and interest of the estate of Merrill Davis, deceased, because it purports to be the individual deed of Frances Davis. This really is the serious and doubtful question in the case, as the deed is informally and inartistically drawn; but, construing its language together, we think we may fairly hold that it conveyed to the grantee all the right, title and interest of the estate of the intestate to the property therein named. It states that it is made by Frances Davis, administratrix of the estate of Merrill Davis, deceased, by virtue of the proceedings had at the July term, 1864, of the probate court in and for the county of Jackson and state of Kansas; and as we must assume upon the finding that due proceedings were had at said July term by the probate court to transfer and convey this identical land to the grantee named therein, this reference and statement, with the other words used in the deed, make it the official deed of the administratrix, and more than the individual deed of the grantor. Even if the deed is defective, it is not necessarily void. (Bobb v. Barnum, 59 Mo. 394.)
IV. Finally, it is urged that the conveyance is void, for the reason that the provision of the statute of 1864, under which it was executed, never went into effect, or became a law. The argument of counsel is, that no time is fixed by the act itself when it shall be in force; that so much of ch. 37, laws 1863, as prescribes the time when acts thereafter passed shall go into effect, is in violation of §16, art. 2 of the state constitution, as the subject of that act is not sufficiently expressed in its title. The title is in these words: “An act to define what shall constitute the publication of laws.” The constitution ordains that no law of a general interest shall be in force until the same is published. (§19, art. 2.) The act of 1863 provides for the publication of the laws and joint resolutions of the legislature; and adds, that such laws and joint resolutions shall take effect and be in force from and after the publication is ordered, when not otherwise specially provided. There is such a connection between the general subject of the act, all its provisions and the title, that the law is clearly valid and constitutional.
The other matters referred to by counsel are not sufficiently important to require comment.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Plaintiffs alleged that they were partners, ■engaged in the business of commission merchants in Chicago; that defendant shipped cattle to them, which they sold on commission, and that out of these transactions a balance was still due them. Defendant answered, denying any indebtedness, and claiming a special partnership with plaintiffs, alleging that he shipped the cattle under an agreement that plaintiffs should charge no commissions; should advance money to defendant with which he should buy cattle and ship to plaintiffs, and that the profits and losses should be divided; and loss resulted, and that plaintiffs were indebted to him, instead of him to plaintiffs. The testimony showed that defendant made such a contract with Jacob Frye, one of the partners plaintiffs; that the other partners knew nothing of it, and supposed the cattle were shipped to them in the ordinary line of their business as commission merchants. The court found that such contract with one partner, without the knowledge of the others, was a fraud upon them, and did not as to these transactions constitute defendant a partner with plaintiffs, and that therefore he could recover nothing of them; and, on the other.hand, that as these cattle were shipped to the firm under the special contract with one member thereof, the firm as a firm could not ignore the contract and recover of the defendant as though he were an ordinary shipper. Plaintiffs alleged exceptions. They say that one partner in a firm cannot, without the consent of his copartners, introduce a new member into the firm; that therefore this alleged special partnership agreement between Sanders and Frye was void as to them, and being void, the law implies a valid contract between them as commission merchants and Sanders a shipper. We think the exceptions of the plaintiffs must be overruled. We agree with the proposition that one partner cannot introduce a new member into the firm without the consent of his partners. But this does not deprive a partner of the power to bind his firm to receive compensation for their services in any particular transaction upon the basis of a share in the profits of that transaction; providing always that the transaction was one within the scope of the ordinary business of the firm. It appears from the testimony that when plaintiffs’ firm consisted of but two members (half its present number), defendant and his then partner made a similar contract with them, shipped cattle, and settled upon the basis of such contract. It also appears from some of the testimony that plaintiffs were live-stock and commission merchants. This description would be broad enough to include dealing in cattle otherwise than upon commission, the buying and selling on their own account; and in such case the contract found by the court to have been made, was one within the apparent powers of one partner. It would be simply the employment of defendant to purchase cattle, with a promise of half the profits as a compensation for his services, or a contract determining the price to be paid him for the cattle he might purchase and ship. Either way it. would be as binding upon the firm as a promise by one partner to pay so much a head for the cattle. But taking the case upon the theory that plaintiffs were engaged simply in the commission business, and still we think the judgment of the district court; must be sustained. A contract for the absolute purchase of cattle might not be within the scope of the firm’s business, but would a contract for the division of profits in lieu of commission be so far outside such business as to be ultra vires of a simple partner? If the profits had been large, could the shipper have repudiated the contract and recovered of the firm the total proceeds of the .cattle, less the ordinary commission? or would not the courts have been compelled to say that this was merely one method of determining the commission, a subject-matter of contract within the power of each partner? But going still further, and conceding that the contract was ultra vires and not binding upon the firm, still the cattle were shipped under said contract. It was an express and an executed contract. It was unquestionably valid as between Frye and defendant. It was a joint venture of those two. They shared the profits and were liable for losses. They were partners in it. Can one firm sue another when the same person is a member of each firm? Under the old practice they could not at law, (Parsons on Partnership, p. 288, and following,) though in equity and for accounting an action would lie. Perhaps under the code, and where a ’ simple debt is due from one firm to the other, an action to recover it will lie without any resort to an accounting. (Gibson v. O. F. Co., 2 Disney, 499.)
But where dealings are had by a party with a firm under an express contract with one member thereof in the name of the firm, which contract creates a partnership in ' L L su°h dealings between the party and the con£raetjng member of the firm, and when completed leaves unsettled accounts between said parties, the firm cannot in its name as a firm, repudiating the express contract as beyond the power of the contracting member to bind the firm, bring an action against such party as upon an implied contract with the firm. The ease is one which calls for an accounting, and until that accounting is had, no mere action to recover money will lie. Non constat but that the contracting member represents the actual capital of the firm and the others are but nominal partners. May he use the firm-name to repudiate his own contract? Perhaps, on settlement, his own liability to the third party upon the express contract would exceed any possible liability to the firm from the third party upon any supposed implied contract. Ought such third party to suffer the annoyance and risks of a judgment? Will the law ever imply a contract where there was in fact an express contract? (Perry v. Bailey, 12 Kas. 539.) The shipment was made under a contract valid and binding upon the shipper and Erye. Frye’s partners may repudiate any liability thereunder. But can they bind the shipper to a contract he did not make in lieu of one he did make?
We see no error in the ruling of the district court, and the judgment must be affirmed.
All the Justices concurring.- | [
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The opinion of the court was delivered by
Horton, C. J.:
This Avas an action brought by the plaintiff in error, under section 595 of the code, to recover certain real property in the possession of the defendants in error. Upon the second trial the court found that the defendants claiming title to the land in controversy held under an administrator’s sale through the probate court of Leavenworth county, which was void for Avant of the notice required by § 24, laws 1855, page 72, and thereon adjudged the legal ■title and right of possession to the land to the plaintiff, subject to the rights of certain defendants under and by virtue of the provisions of article 25 of the code, relating to occupying claimants, and the right of these defendants to have refunded the taxes paid by them.
The so-called administrator’s sale took place between September 22d, 1859, and December 21st, 1859, and the deed was executed Dec. 31st, 1859. This action was commenced March 1st, 1873. The judgment was rendered December 12th, 1874.
Counsel for plaintiff contend, in the first place, that as §136, Gen. Stat. 1062, relating to the repayment of taxes where lands are in controversy, only took effect March 15th, 1868, and §613, Gen. Stat. 753, concerning the refunding of the purchase money in certain cases where lands are sold by an administrator, etc., only took effect October 31st, 1868, these sections are void and inoperative as to this case. Their argument is, that as the plaintiff had over eight years after the administrator’s sale to sue for and recover the land, without refunding the purchase money paid the administrator, and without the repayment of the taxes, said §§ 136 and 613 are violative of §§18 and 20 of the bill of rights of our state constitution, for if applicable in this case, they allege that they in effect take from the plaintiff his property and give it to certain of the defendants, to the extent, at least, of the amount of the purchase money — some $2,536.87 and the taxes, with interest. Again, counsel further argue that if said sections can have force retroactively, then by mere legislative enactment property is taken from one individual and given to another for his individual use, and rights and liabilities are created, established and determined without any act, consent or previous reason or cause in the law therefor, at the mere caprice of the legislature. The argument thus presented is ingenious and able, and at first blush plausible, but ignores the relation which the claims to be refunded bear to-the estate inherited by the plaintiff, and the equitable rights of such defendants.
At the time of the decease of Jeremiah H. Claypoole, the ancestor of plaintiff, the statutes of the territory providing for descents and distributions, made the debts of said deceased a charge on this land. One of these debts was a balance due for purchase money on the land in dispute. The land was sold for the payment of the debts, including the claim for purchase money overdue. This money was applied in the payment of these debts, and deed obtained for the land. Thus, with the $2,536.87, the land was discharged from the lien of the debts of the deceased, and the final payment of the,purchase price made; equitably, therefore, it is clear that if the sale was void the heir ought not to obtain the property in any better condition than it was left by his ancestor. It was then burdened'with debts and unpaid purchase money. The judgment requires this to be paid. It has been frequently held that where a title in equity was such that a court of chancery ought to interfere and decree a good legal title, it was within the power of the legislature to confirm the deed. Section 613 is an exercise of no greater power. By its adoption the purchaser, at what was supposed to be a valid sale, has the right, whether the sale was prior to or after the passage of the section, to be subrogated to the position of the creditors, who received the purchase money to be applied on their claims. It comes in aid of persons who have acted in good faith, and whose acts have been beneficial, not injurious, to the rights of the heir. The law does not require the plaintiff to give up any part of the property he inherited; it simply gives it to him as inherited. The law does not create property in the defendants, but cures defects existing at its passage in the interest of purchasers at executors’, administrators’ and judicial sales. It very properly demands that where such sales are decreed invalid, the property shall not be taken from their possession, obtained under the sale by the person originally liable, or one standing in his shoes, until the purchase money is refunded: in other words, it reinstates the lien on the land in favor of one whose money has been applied to the’discharge of such lien under a sale which turns out to be irregular, and therefore void. In being allowed to operate retrospectively, it does not impair any contract or disturb any vested right. It cannot therefore be said to violate any provision of our bill of rights, nor to assume judicial power. It does not transfer property by its own act, but says in substance to the heir, you shall act honestly. The same rule is applicable to § 136, which provides for the return of the taxes, because they all were an original charge and lien on the land till paid by defendants.
It is further insisted that sections one and two,-ch. 102, laws 1873, are unconstitutional and void as to any case; and McCoy v. Grandy, 3 Ohio St. 463, 471, is cited as decisive. The act of March 22d, 1849, of Ohio, (referred to in the latter case,) is widely different from the act of our legislature of March 6th, 1873. The former act gave to the occupying claimant the option either to take the land by paying a sum of money equal to the value of the land in a state of nature, or to receive payment for his improvements. Our statute of 1873 requires the value of all lasting and valuable improvements to be paid by the owner of the land as a condition precedent to the entry. It does not give any option to the claimant to keep the land, and the provision for judgment in his behalf for the improvements must be construed merely to prevent any writ or process from issuing for his eviction, until the assessment or judgment for improvements is paid. No personal judgment can be entered against the owner of the land, capable of being enforced by execution or other process. With this construction, the amendatory act of 1873 is constitutional. It rests upon a strong equity in favor of a compensation for improvements which have augmented the value of the land and inured to the benefit of the owner, and such owner takes the land, but pays for such improvements. Under our statute, the owner is not compelled to give up his land, but merely to recompense the occupying claimant the .amount which its value has been increased by means of the improvements. This is really the adoption of the well-settled principle in equity, of allowing a bona fide occupant the value of his improvements on real estate. (Guthrie v.Stebbins, 4 Kas. 353.)
The order and judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The proceedings in this case arose out of the location and establishment of a public road. The road was located along the west line of the plaintiff’s land, and he claimed'damages'therefor. No damages, however, were awarded to him, and in the district court judgment was rendered against him for costs. He seeks to reverse that judgment for the following alleged-errors, to wit: Errors of the court in admitting testimony; errors in giving, refusing and modifying instructions; errors in giving, refusing and modifying special questions submitted to the jury for them to-make special findings upon; and error in overruling the plaintiff’s motion for a new trial.
At the trial the plaintiff introduced his evidence, which showed that the road occupied 3T7T acres of his land; that the land was worth from $20 to $27.50 per acre; that the plaintiff would have to build about-a half-mile of extra fence by reason of the road; that he had never traveled the road; and that the road was and would be of no use or benefit to him.
The defendant.then introduced its testimony. It asked the first witness the following question, to wit: “What, in your opinion, was the damage to plaintiff by the laying-out of this road?” It asked three other witnesses substantially the same question. The answer of the first witness was as follows: “In my opinion the plaintiff was not damaged any by the laying-out of the road; the benefits to the land were equal to the damage done by the laying-out of the road.” The second witness answered: “In my opinion plaintiff’s land was not injured any by the laying-out of this road.” The third witness answered: “In my opinion he was not damaged anything.” And the fourth witness answered: “In my opinion the plaintiff was not damaged anything by the laying-out of this road.” These questions were all objected to upon the ground that it was asking the opinion of the witnesses concerning conclusions which it was the province of the jury to determine. The court overruled the objection, saying each time substantially as follows: “The witness may answer the question; the plaintiff may cross-examine as to how he comes to the conclusion.” The plaintiff each time excepted to the rul íng of the court. The plaintiff cross-examined each of said witnesses, and each of them showed by his evidence on cross-examination that he founded his opinion that the plaintiff was not damaged upon the supposed increase in the value of the plaintiff’s land caused by the increased facilities for public travel and transportation; and not one of the witnesses stated or showed that the plaintiff received any direct or special benefit from the location of the road, or that he received any benefit different in kind from that received by the other members of that community; nor was any such evidence introduced on the trial. This was substantially all the evidence in the case. The court then gave, among others, the following instruction to the jury, to wit:
“The court instructs the jury that all conveniences and benefits are a proper subject for the jury to take into consideration in arriving at a proper conclusion as to what damages shall be allowed to the plaintiff.”
The court refused to give the following instructions asked for by the plaintiff, to wit:
“The court instructs the jury that benefits accruing to the land from which the road is taken must be such as are not enjoyed by the community in general, such as the draining of the balance of the land by the road laid out.”
“The court instructs you that general benefits are such as increased facilities for travel, increased value of land in the community in general, etc., which are to be excluded.”
The court refused to direct the jury to find upon the following, among other particular questions of fact stated in writing by the plaintiff and requested by him to be submitted to the jury for them to find upon, to wit:
“What benefit, if any, did the plaintiff receive in common with the public by the laying-out of the road?”
“What benefit, if any, did the plaintiff receive by the laying-out of the road which was special to him and which the public did not enjoy?”
“ What was the full amount of benefit sustained by the plaintiff by the laying-out of the road in question?”
The court, however, did submit to the jury the following questions, and the jury answered thereto as follows:
“What was the value of the land taken in this case, based on the fair market value of the land at the time of the taking ?”
Answer: “Seventy-two dollars and seventy-two cents.”
“Did the balance of the End of plaintiff suffer any decline in value by the laying-out of the road?”
Answer: “No.”
“What benefit, if any, did the plaintiff receive by the laying-out of the road, which was special to him and to the farm through which the road runs? If any such benefit is caused, state the money value of such benefit.”
Answer: “Seventy-two dollars and seventy-two cents.”
The jury also found a general verdict in favor of the defendant and against the plaintiff. The plaintiff then moved the court for a new trial, upon various grounds, but the court overruled the motion, and rendered judgment in favor of the defendant and against the .plaintiff for costs, as already stated.
We think the court below erred in several particulars; but all the errors probably arose from the erroneous opinion seemingly entertained by the court, “that all conveniences and benefits are proper subjects for the jury to take into consideration in arriving at a proper conclusion as to what damages should be allowed to the plaintiff.”
Now, “all conveniences and benefits” are not proper subjects for the jury to consider in awarding damages to a landowner who is seeking damages for supposed injuries to his land, claimed to have been caused by the location of a road over his premises. It has already been decided by this court, that “in the appropriation of the right of way for a public road, the public has a right, in the absence of any special statutory or constitutional restrictions, to reduce the damages to be awarded to the land-owner by the amount of benefits which inure to him as the direct and special result of the proposed road, but not by any which he receives in common with the rest of the public.” (Pottawatomie Co. v. O’Sullivan, 17 Kas. 58.) That is, the benefits which may be taken into consideration for the purpose of reducing the damages to be awarded to the land-owner are such as are direct and special as to him and his land,-, and not such as are received in common by the whole community; and with reference to cause and effect, they are such as are direct, certain, and proximate, and not such as are indirect, contingent or remote. It is true, that increased value of the land is often taken into consideration in fixing the amount of the damages; but this is done only where such increased value arises from some direct, special and proximate cause, such as the draining of the land, or building bridges across streams running through the land, or making some other valuable improvement on or near the land, by means of which the owner will be enabled to enjoy his land with greater advantage. That is, the increased value must be founded upon something which affects the land itself directly and'proximately. It must be founded upon something which increases the actual or usable value of the land, as well as the market or salable value thereof, and not such as increases merely the market or salable value alone. Increased value founded upon merely increased facilities for travel and transportation by the public in general, is not the kind of increased value which may be taken into consideration in reducing the damages to be awarded to the land-owner. That kind of increased value is too indirect and too remote from the original cause, which cause is the laying-out of the road. Besides, it is a kind of increased value which is common to the whole .community in general, and to each individual thereof to a greater or less extent; and it has no relation to the use of the land as land, but it is merely an increased market value founded upon the extraneous circumstance of increased facilities for public travel and transportation. Upon the question of setting off benefits against damages, we would refer to the following authorities, to wit: James River, &c., Co. v. Turner, 9 Leigh (Va.), 313; Carpenter v. Landaff, 42 N. H. 218; Meacham v. Fitchburg R. R. Co., 58 Mass. (4 Cush.) 292; Dickenson v. Fitchburg, 79 Mass. (13 Gray) 546; Dwight v. Hampden, 65 Mass. (11 Cush.) 204; Little Miami R. R. Co. v. Collett, 6 Ohio St. 182; C. & P. R. R. Co. v. Ball, 5 Ohio St. 569.
It most be remembered that iu the present case other public roads were established along other sides of the plaintiff’s land, and that he had no use for the one for the establishment of which he now claims damages.
From the foregoing views we think it will now be apparent that the court below committed error in the following among other particulars: -
I. The court committed error in permitting said questions to be put to said witness. As a general rule the opinion of a witness as to the amount of damages which the land-owner sustains by reason of the establishment of a public road across his land, is not admissible as evidence. (Atlantia, &c., Co. v. Campbell, 4 Ohio St. 583; Cleveland, &c., Co. v. Ball, 5 Ohio St. 568; Sedgwick on Damages, 590.)
If it had been previously shown that there were no benefits or damages except such as were special, direct and proximate, then possibly the questions might have been asked, but such was not the case. On the contrary, it had previously been shown that the only benefits received by the plaintiff, if he received any, were such as were common to the whole community, and were indirect and remote. The answers of the witnesses, therefore, included matters not proper to be considered by the jury.
II. The court also erred in instructing the jury “that all conveniences and benefits” were proper subjects to be considered by the jury, for reasons already stated in this opinion.
III. The court also erred in overruling the motion for a new trial, for reasons already given. The new trial should have been granted on the ground of previous errors committed by the court, and also on the ground that the verdict was not sustained by sufficient evidence. There was no evidence showing that the plaintiff was- benefited directly, specially and proximately,- $72.72, or any other amount.
IY. There are other rulings of the court below complained of, but we do not think that it is necessary to make any special comment upon them.
Y. The plaintiff is not necessarily damaged to the full value of the land covered by the road, even if he has not received nor will receive any benefit of any kind whatever by reason of the road ■ for the public, by laying out and establishing the road, does not become the owner of the land covered by the road, but acquires onlyan easement in the land, and the land-owner himself still remains the owner of the fee, and of everything connected with the land not necessary for the public use. (Shawnee Co. v. Beckwith, 10 Kas. 603.) It is proper, however, in many cases, and perhaps indispensably necessary in some, to introduce evidence showing the value of land; and as to such value, competent witnesses-may express their opinions.
All the Justices concurring.- | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action by C. O. Perkins against School District No. 29, Bourbon county, on a certain paper-writing, in words and figures, to wit:
State of Kansas, \
j 17,
M. ~V. Colt and A. Goucher, school directors of district No. 29, township of Drywood, county of Bourbon and state of Kansas, bought- of Chaplin, Colton & Co., one of their “Wonders of the World,” comprising one book, one stereoscope, and one hundred stereoscopic illustrations, at the cost of fifty-eight dollars, to be paid on or before the "first day of May, 1875, with interest at the rate of six per cent., payable at the First National Bank, Fort Scott, Kansas.
(Signed) M. Y. Colt, Director.
A. Goucher, Clerk.
On the back of said paper writing there was the following receipt, to wit: v
Drywood Township, Oct. 21, 1873.
This is to certify that the within-described school fixtures were received by me, one of the board of school directors of school district No. 29, all in good order.
(Signed) M. Y. Colt.
■And also an indorsement from Chaplin, Colton & Co.
The action was commenced before a justice of the peace, appealed to the district court, where a judgment was rendered in favor of the plaintiff, and the school district now brings its petition in error.
Upon this record it is insisted by the plaintiff in error that without a vote of the district, at a regularly called school meeting, the district board 'has no power to bind the district by such a contract. This claim we think is correct. The powers of a district board are defined in article 4 of chapter. 92 of the General Statutes. Section'46 of that article (Gen. Stat., p. 925) is referred to by counsel as granting such a power, but we cannot so construe the section. It reads: “The district board shall provide the necessary appendages for ihe school house during the time a school is taught therein.” Now a stereoscope, however valuable or useful it may be in a school, can in no proper sense of the term be called an appendage for a school house. It may be difficult to state exactly what is meant by and included in this phrase, “appendages for the school house.” It would seem to refer to things connected with the building or designed to render it suitable for use as a school house. But without attempting to define the exact scope of the phrase, it is plain that no reasonable interpretation would enlarge it so as to include a stereoscope and stereoscopic views, which, if not the “toy boy and pictures,” as counsel sneeringly call them, are- at most but mere apparatus. And provision is elsewhere made for supplying the school with “ blackboards, outline maps and apparatus.” Section 19 of said chapter provides that a school-district meeting, lawfully assembled, shall have power to vote a tax for supplying the school house with those conveniences. Only upon such a vote can the district board act, and then only to the extent of the tax voted. And this brings us to the second question, and that is, whether the fact of such a vote is a matter for the plaintiff to prove, or the want of it a defense for the defendant to establish. We quote from the brief of defendant in error:
“Let it be noticed that it is not claimed that, upon certain conditions and under certain circumstances, the school-district officers could not bind the district by the execution of such a paper as is here sued upon, but" only that these conditions and circumstances did not exist; that is to say, that the school-district meeting had not been held.
“Now, it being admitted that the officers had the power to make the purchase and execute the paper sued on in this action, it was wholly a matter of defense for the district to allege and prove that the conditions and circumstances under which the power to purchase would ordinarily exist did not in fact exist in this instance. That is to say, even if there should have been a school-district meeting, (and there was not one,) still, if the district relied upon that as a defense, it should have alleged and proved it.”
In this we think .the learned counsel are mistaken. The contract was not within the ordinary powers of the district board. It was a power which could arise only from express grant by the principal, the district. In such a case, the act of the agent is not evidence of the fact of the grant. It devolves upon him who claims that the district is bound by the acts of the board,' to show the authority of the latter to act. In some cases, the statute alone grants the power. In those cases, proving the act of the board establishes the claim against the district. In other cases, a vote must combine with the statute before the power is created; and then, mere proof of the act does not prove the vote or establish the power. This is in accord with the settled law of agency. The denial of the applicability of these rules to negotiable municipal bonds in the hands of bona fide holders, has been the point around which has raged much of the fierce controversy concerning such bonds. We conclude, therefore, that the fact of a vote was for the plaintiff to prove, and that the making of the contract was not evidence of a power in the board to make it.
For this error, the judgment of the district court must be reversed, and the case remanded with instructions to grant a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was commenced in a justice’s court, by Jeremiah Baker against Solomon Duncan, to recover $48.40, which he claimed to be due for 59 days’ work. Judgment was rendered in the justice’s court in favor of Baker for $19.90 and costs, and Duncan then appealed to the district court. In the district court judgment was again rendered in favor of Baker for $19.90 and costs, and Duncan then brought the case to this court for review.
It would seem from the evidence in the case that Duncan hired Baker to work for him for seven months, at $15 per month; that Baker, under the contract, worked for him only 59 days, and then quit, and (as Duncan claims) without any reasonable excuse therefor; that during the time that Baker worked for Duncan, Duncan paid Baker $9.60 on his work, and afterward refused to pay him anything more.
Duncan claims that Baker is not entitled to recover anything for his work; and this he does upon the ground that the contract under which Baker did the work was an entire contract — that under such a contract there can be no apportionment, and therefore, that, as Baker quit work before the time for him to do so under the contract had arrived and without any reasonable excuse therefor, he cannot now recover for what work he actually did under the contract.
There are many authorities which sustain this claim of the plaintiff in error, Duncan. Indeed, nearly all the older authorities do; but we think a majority of the later and better-reasoned cases sustain the contrary doctrine.
Mr. Parsons, in his work on Contracts, speaking of entire contracts, says:
“So, too, if one party, without the fault of the other, fails to perform his side of the contract in such a manner as to enable him to sue upon it, still, if the other party have derived a benefit from the part performed, it would be unjust to allow him to retain that without paying anything. The law, therefore, generally implies a promise on his part to pay such a remuneration as the benefit conferred upon him is reasonably worth; and to recover that quantum of remuneration, an action of indebitatus assumpsit is maintainable.” (2 Pars. Cont., 6th ed., 523.)
Many authorities may be found to sustain the foregoing proposition of Mr. Parsons, and to sustain it in all its various aspects. Thus, authorities may be found to sustain it with reference to contracts of sale; contracts to do some specific labor upon real estate, as building or. repairing houses, etc.; contracts to do some particular labor upon personal property, as making or repairing specific articles of personal property, and contracts for personal services. The leading case which sustains the foregoing proposition with reference to contracts for personal services, is the case of Britton v. Turner, 6 N. H. 481. That was an action of indebitatus assumpsit, with a quantum meruit count for work and labor performed. The plaintiff had contracted to work for the defendant for one year for the sum of one hundred dollars; but he left the defendant’s employment after working for him for only about nine months, without the consent of the defendant and with out good cause, It was held, however, that he might recover on the quantum meruit count, notwithstanding his failure and refusal to work the full time that he had agreed to. There are other cases directly applicable to the present case, to some of which we shall hereafter refer.
Mr. Field, in his work on Damages, says that —
“The doctrine now generally recognized in case of part performance of a contract for personal services is, that if the employer accepts the benefit of what has been done, whether voluntarily or from the necessity of the case, the employé may recover according to the contract price for what has been done; or, where he is to receive a fixed sum for the whole work, then, in the proportion which the work done bears to the whole work; or, where there is no price fixed, then upon a quantum meruit, from which, however, there must be deducted whatever damages may have resulted to the employer from the failure to fully perform the contract by the employé.” (Field on Damages, § 327.)
Mr. Field, also, after commenting upon the case of Britton v. Turner, ante, and speaking of the argument therein contained as being an able one, then says, that “The tendency of the decisions seems to be in harmony with the views thus ably set forth.” (§ 332.) He further says: “The doctrine of Brit-ton v. Turner is also now fully or partially recognized in Michigan, Wisconsin, Indiana, Illinois, Pennsylvania, Maine, Texas, Tennessee, Missouri, New York, and other states.” (§334.) “And the doctrine, in view of its manifest justice, is likely to grow in favor until it becomes universally recognized.” (§335.)
Mr. Parsons also says:
“The case of Britton v. Turner, 6 N. H. 481, resists the whole doctrine of these cases, [previously by him cited,] and permits the servant to recover on a quantumi meruit. His right to recover is carefully guarded in this case by principles which seem to protect the master from all wrong; and to require of him only such payment as is justly due for benefits received and retained, and after all deduction for any damage he may have sustained from the breach of the contract. So guarded, it might seem that the principles of this case are better adapted to do adequate justice to both parties, and wrong to neither, than those of the numerous cases which rest upon the somewhat technical rule of the entirety of the contract.” (2 Parsons on Cont., 6th ed., *38, 39.)
The following cases are also in point: Pixler v. Nichols, 8 Iowa, 106; McClay v. Hedges, 18 Iowa, 66; McAfferty v. Hale, 24 Iowa, 356; Byerlee v. Mendel, 39 Iowa, 382; Wolf v. Gerr, 43 Iowa, 339.
In the case of McClay v. Hedges, ante, Judge Dillon, who delivered the opinion of the court, uses the following language :
“This question was settled in this state by the case of Pixler v. Nichols, 8 Iowa, 106, which distinctly recognized and expressly followed the case of Britton v. Turner, 6 N. H. 481. That celebrated case has been criticised, doubted, and denied to be sound. It is frequently said to be good equity but bad law; yet its principles are gradually winning their way into professional and judicial favor. It is bottomed on justice, and is right upon principle, however it may be upon the technical and more illiberal rules of the common law as found in the older cases. (18 Iowa, 68.)
See, also, Hillyard v. Crabtree, 11 Tex. 264; Carroll v. Welch, 26 Tex. 149; Hollis v. Chapman, 36 Tex. 1, 5. In the last case cited, the court uses the following language:
“But this court, by a succession of decisions, has settled the question of the apportionability of contracts, and we are inclined to follow those decisions in this case. [Citing the above, and other cases.] In the last case, the court says: ‘The doctrine of the earlier decisions, to the effect that where the contract, in cases like the present,' is entire, the performance'by the employé is a condition precedent, and he has no remedy until he has fully performed his part, is not now the recognized doctrine of the courts.’ ”
See, also, Lamb v. Brolaski, 38 Mo. 51, 53; Ryan v. Dayton, 25 Conn. 188; Epperly v. Bailey, 3 Ind. 73. See, also, the numerous cases cited by Mr. Field in his work on Damages, §334, note 24; also, cases cited in 3 U. S. Dig., 1st series, p. 521, No. 2390.
The weight of authority at the present time, we think, is unquestionably against- the. doctrine that where a contract is entire, and consequently not apportionable, and has been only partially performed, the failing party is not entitled to recover or receive anything for what he has actually done. It will perhaps be admitted that the doctrine has been overturned with respect to all contracts except those for personal . services; and if so, then there is not much of the doctrine left. But if the doctrine is to be abandoned with reference to all contracts except, those for personal services, then why not abandon the doctrine altogether? The reason usually given is, that the employer in contracts for personal services has no choice except to accept, receive and retain the services already performed, while in other contracts he may refuse to accept, or may return the proceeds of the partially-performed contract, if he choose. But this is not always, nor even generally, true with respect to other contracts. Suppose a miller purchases a thousand bushels of wheat for a thousand dollars, the wheat to be delivered within one month; he receives the wheat as it is delivered, and grinds it into flour; when the vendor has delivered 500 bushels he refuses to deliver any more: what choice has the miller, except to retain what he has already received? This kind of supposition will also apply to the purchase and sale of all other kinds of articles, where the purchaser on receiving them changes their character so that he cannot return them. Or suppose that an owner of real estate employs a man to build or repair some structure thereon for a gross but definite sum, the owner of the real estate to furnish the materials or a portion thereof in case of building, and either to furnish them in case of repairing, and the job is only half finished: what choice has the owner of the real estate with reference to retaining or returning the proceeds of the workman's labor? This kind of supposition will also apply to all kinds of work done on real estate, and will often apply to work done on personal property. Of course, in all cases where the employer can refuse to accept the work and does refuse to accept it or returns it, he is not bound to pay for it unless it exactly corresponds with the contract; but where he receives it and retains it, whether he retains it from choice or from ne cessity, he is bound to pay for the same what it is reasonably worth, less any damage that he may sustain by reason of the partial non-fulfillment of the contract. Of course, he is not bound to pay anything unless the work is worth something, unless he receives or may receive some actual benefit therefrom; and where he receives or may receive some actual benefit therefrom, he is bound to pay for such benefit (and only for such benefit), within the limitations hereinbefore mentioned.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was commenced in a justice’s court by Charles Wirth against Cory & Kimball, for the sum of $60. The action was afterward taken on appeal to the district court, where it was again tried by the court without a jury. The court found generally in favor of the plaintiff and against the defendants for the amount claimed, and rendered judgment accordingly. The defendants now bring the case to this court, and ask a reversal of the judgment below. They claim that the findings and judgment of the court below are not sustained by sufficient evidence, and are contrary to law. The only question really before us is, whether said finding is sustained by sufficient evidence. The facts of the case, as shown by the plaintiff’s evidence, are substantially as follows: Wirth was about to sell some furniture to Jerry Donnovan for $60, on' credit. Wirth told Donnovan that he wanted security. Donnovan then said that Cory & Kumball had a note of his for collection against Ed. Glasgow and Thomas Smith for $125, and that Wirth should be paid when the note was collected. They then went into Cory & Kim-ball’s office, where they met Kimball, and told him that Wirth wanted to be secured for $60, and that when said note was collected Wirth was to have $60 of the proceeds thereof. Kimball then drew up the following instrument in writing, signed the same for his firm and for Donnovan, and then delivered the same to Wirth. Said instrument reads as follows:
“Parsons, September 30, 1874.
“ Whereas, the undersigned, Cory & Kimball, have in their possession for collection a note for $125, given by Ed. Glasgow and Thomas Smith, now it is understood and agreed by all the parties, that when said note is collected, $60 out of the proceeds shall be paid to Chas. Wirth.
“(Signed) Cory & KimbalE and Jerry Donnovan.”'
Said note was past due when this instrument was drawn up, signed and delivered. Wirth then let Donnovan have said furniture. Afterward, Donnovan himself collected the money due on said note, but concerning the details of its collection, and as to whether Cory & Kimball had any connection therewith, the evidence is contradictory. That Cory & Kimball delivered, up the note to Donnovan, is admitted; but whether they delivered it up before or after its collection, is not quite clear. It was shown by the evidence on this trial that Kimball admitted and testified on the first trial of the case that he was present when Glasgow and Smith paid the money due on said note to Donnovan. It was shown that Donnovan went to Cory & Kimball’s office for the note; and one witness testified on this trial that he thought, but he would not be positive, that Kimball testified on the other trial, “that he (Kimball) went over with him (Donnovan) from the office, and was present when the money was paid to' Donnovan by Glasgow and Smith.” Another witness introduced by the defendants themselves testified concerning Kim-ball’s said testimony, as follows:
“I inferred from what he said that he went to Glasgow’s saloon on business with Donnovan, and was there when Glasgow paid the money, but did not go for the purpose of making, the collection.”
There was other testimony of the same kind upon this subject. Kimball testified on the present trial that nothing was said at the time he drew up said instrument about security,, or about Donnovan’s and Wirth’s transactions, and that he knew nothing about them. He also testified that he understood that Donnovan had collected the money due on said note before he came to their office for the note, that he did not go with Donnovan to Glasgow & Smith’s saloon, and that he was not present when said note was paid. He also testified that neither he nor his firm ever received anything for drawing up or signing said written instrument; that they never received any of the proceeds of said note; and that Donnovan afterward left the country and went to Texas without even paying them their fees. As to a part of these matters he was corroborated by Cory.
It was also shown by the evidence that «when Donnovan left said note with Cory & Kimball, he left it with the order that suit should be brought on it, unless it was paid at once. And there was no evidence tending to show that Cory & Kimball ever made the slightest effort to collect said note, except to notify Glasgow & Smith prior to the drawing of said written instrument, that they had the note for collection, unless they assisted Donnovan to collect it at the time that it was paid to Donnovan. Cory & Kimball are attorneys and counselors at law.
It will be remembered that the court below found generally in favor of the plaintiff, and against the defendant. It will therefore be presumed that the court below found as follows: Said instrument in writing was drawn up and signed and delivered to Wirth for the purpose of transferring to Wirth an interest in said note of $60, as collateral security for the payment of the debt of that amount then being created by Donnovan by his purchase from Wirth of said furniture, and also for the purpose of making Cory & Kimball the common agents, trustees and attorneys of Wirth and Donnovan for the collection of the money due on said note, and for the paying the same over to Wdrth and Donnovan according to their respective interests therein, to wit: $60 to Wirth, and $65 and interest to Donnovan; that, taking the written instrument, together with the accompanying circumstances, they were sufficient to accomplish the above-mentioned purposes as the parties intended; that Cory & Kimball were to collect said note immediately, but that they failed, and really made no effort to do so, except in connection with Donnovan; that before said note was collected they gave up the note to Donnovan, and then one of them went with him to the payors thereof, and was present when the note was paid to Donnovan, and made no objection thereto nor made any claim for the $60 due to Wirth.
These may not be the true facts of the case, but from the record we must presume that the court so found them, and as there was sufficient evidence, if it had not been contradicted, to prove them, we must decide the case as though they were the true facts of the case. Taking these facts, then, to be true, we do not think that the defendants did their duty toward Wirth. They did not make sufficient effort to collect said note. Perhaps, with the slightest effort on their part, they could have collected it. They should not have given said note to Donnovan, as they did, before it was collected. Perhaps, if they had not returned it to him, he could never have collected it. And when it was paid, as one of their firm was present at the time, they should have claimed $60 for Wirth. They wholly neglected Wirth’s interest, however; and because of such neglect, they became liable for the amount which Wirth was to receive out of the proceeds of said note. Donnovan seems to have been and to be utterly insolvent and pecuniarily worthless. The plaintiffs in error seem to discuss this case as though the agreement between the parties was a mere personal executory agreement on the part of Donnovan alone with Wirth to collect said note, and then to pay $60 of the proceeds thereof to Wirth. Such is not the case, however, under the findings of the court below. The agreement, taking the written instrument and all the accompanying circumstances together, was an assignment and an appropriation of $60 of the fund then in the hands of Glasgow & Smith, for the purpose of paying the debt which was at the same time created from Donnovan to Wirth; and Donnovan was not to collect said $60, but Cory & Kimball alone were to do so; and Donnovan was not the only person who agreed to this arrangement, but Cory & Kimball also agreed to it. And the facts that Wirth parted with his furniture on the strength of this arrangement, and Cory & Kim-ball would have been entitled to their fees for collecting and disbursing said money if they had done the same faithfully, were a sufficient consideration for their agreement. They could have sued on the note if they could not otherwise have collected the money due thereon; and they had the right to use Wirth’s name in any such suit, as well as that of Donnovan. The plaintiffs in error discuss this case upon what they claim to be the facts, and not upon what the court below evidently found the facts to be. We might perhaps agree with the plaintiffs in error, if the facts of the case were as they claim them to be; but as the court below found the facts against them and in favor of the defendant in error, and as there was sufficient evidence to sustain the findings of the court below, although such, evidence was contradicted by other parol evidence, we must decide the case upon the facts as claimed by the defendant in error, and as found by the court below.
The judgment of the court below will be affirmed.
Horton, C. J., concurring.
Brewer, J., dissenting. | [
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Per Curiam:
The above case must be affirmed, upon the authority of Winstead v. Standeford, ante, p. 270. | [
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The opinion of the court was delivered by
Valentine, J.:
This is an action of habeas corpus, brought originally in this court by Joseph Hollon against Henry Hopkins. The defendant makes return to the writ, stating among other facts the following, to wit:
“The said Henry Hopkins is the warden of the penitentiary of the state of Kansas, and holds the said Joseph Hollon in his custody by virtue of a judgment rendered by the district court o'f Marion county, Kansas. Said judgment was rendered on September 25th, 1874, and by it Hollon was sentenced, on a conviction duly had September 19th, 1874, for perjury, to imprisonment in the penitentiary ‘for the period of three years from the 19th day of September, A. I). 1874.’ On the next day after said sentence, Hollon escaped from the custody of the officer then having him in charge, and became a fugitive from justice. On May 28th, 1878, he was rearrested in Indiana and brought back to Kansas; and on March 14th, 1879, was for the first time placed in the penitentiary. Since that time he has been in the custody of said Henry Hopkins, warden of the penitentiary as aforesaid.”
Hollon excepts to the sufficiency of this return, on the ground that it does not state facts sufficient to authorize said Henry Hopkins to hold him in custody. He claims that the time for which he was sentenced to the penitentiary has expired, and therefore that his present imprisonment in the penitentiary is unlawful. He claims that by mere lapse of time he is absolutely discharged from all further prosecution, imprisonment or punishment for said offense of perjury. He claims that all proceedings prior to the sentence were merged in and exhausted by the sentence, and that the sentence itself has been exhausted by lapse of time. And he further claims that even if said prior proceedings have not been exhausted, still that the sentence has been exhausted, and that he can never be legally imprisoned under that sentence.
We have no statute directly applicable to this case. The following are the statutes referred to, but none of them seem to be applicable: Gen. Stat. of 1868, pages 356, 357, 358, §§179, 180, 181, 182, 191; id., pages 613, 614, §18; Laws of 1869, page 210, § 5; Laws of 1876, page 201, §§ 1, 3. It is not claimed by either party that any one of these statutes is applicable, except possibly said §191.
It seems to us so clear that Hollon might have been rearrested and imprisoned in the penitentiary under the origi-, nal sentence, at any time prior to September 19, 1877, the time when his sentence apparently expired, that we shall not waste words nor cite authorities to prove the same. Counsel have cited some of the authorities. In such cases, where a serious question of identity arises it may be safer to take the prisoner before the court that originally pronounced the sentence, where the question of identity may be litigated and determined; and if the prisoner is then shown to be the escaped convict, he may be resentenced. But all of this is unnecessary, except for safety, for the question of identity may always be determined on a writ of habeas corpus. If the prisoner is in fact the escaped convict, then his arrest and imprisonment in the penitentiary are lawful without any re-sentence. These remarks have reference to a prisoner who has escaped prior to his imprisonment in the penitentiary; for where he escapes afterward, the statute applies and prescribes the practice. (Laws of-1876, p. 201.)
But as Hollon was not rearrested or imprisoned in the penitentiary until after the term for- which he was sentenced had apparently expired, was his rearrest and is his imprisonment lawful? We think both-were and are lawful. We do not think that the proceedings had prior to the sentence, nor even the sentence itself, so far as its essentials are concerned, were exhausted by lapse of time. The only way of satisfying a judgment judicially, is by fulfilling its requirements. Of course, if Hollon had died or been pardoned, the sentence would be at an end. But as these things have not happened, and as the sentence has not been disturbed by any judicial decision or determination, there is no way of satisfying its requirements or of exhausting its force except service by Hollon of the required time in the penitentiary. It has often happened that a judgment sentencing a person to be executed capitally on some particular day, has not been fulfilled on that day. A reprieve has been granted, an escape effected, some unforeseen event preventing it has occurred, or the officers from some cause have failed to perform their duty, and the convict has for the time being escaped punishment. But in no case, so far as we are informed, has it been held that the convict was thereby freed from all punishment, or that he could not be executed on some subsequent day. See the following authorities: Ex parte Nixon, 2 Rich. N. S. (S. C.), 4, 6, and cases there cited; Howard, ex parte, 17 N. H. 545; State v. Oscar, 13 La. Ann. 297; Lowenberg v. The People, 27 N. Y. 337; Rex v. Harris, 1 Ld. Raymond, 482. If a fine should not be paid at the time ordered, it could certainly be afterward collected. The time fixed for executing a sentence, or for the commencement of its execution, is not one of its essential elements, and strictly speaking is not a part of the sentence at.all. See cases above cited, and State v. Cocherham, 2 Ired. (N. C.) 204; Ex parte Isaiah Bell, Supreme Court of Mississippi, 1879; and Dolan’s Case, 101 Mass. 219. The essential portion of a sentence is the punishment, including the land of punishment and the amount thereof, without reference to the time when it is to be inflicted. The sentence with reference to the kind of punishment and the amount thereof, should as a rule .be strictly executed. But the order of the court with reference to the time when the sentence shall be executed is not so material. The time when a sentence is to be executed is usually fixed by an order of the court; but it is not always necessary, as will be seen from the authorities, that it should be thus fixed. Where the punishment ordered is imprisonment in the penitentiary, and where the time for the imprisonment to commence is fixed by the court, the imprisonment will usuálly be deemed to have commenced at the time ordered by the court, unless the convict by his own wrong has prevented it; and where the time for the commencement of the imprisonment has not been fixed by the court, the imprisonment will usually be deemed to have commenced on the day of the sentence (Ex parte Meyers, 44 Mo. 280), unless the convict by his own wrong has prevented it. But in no case will the term of imprisonment be deemed to have commenced .prior to actual imprisonment, unless the actual imprisonment has been prevented by some cause other than the fault or wrong of the convict. As said in Dolan’s Case (101 Mass. 223), “ Expiration of time without imprisonment is in no sense an execution of sentence.”
The two cases nearest applicable to this case are those of Ex parte Clifford, 29 Ind. 106, and said Dolan’s Case. In the former case it was held:
“ Where a prisoner escapes after conviction, and is- not retaken until after the expiration of the time for which he was sentenced, he may be held until he has completed the full term for which he was sentenced. The statute (2 G. & H., §§55, 56, p.454) was not intended to change the common-law rule in regard to the capture of escaped felons, but only to authorize an additional holding after the sentence has been fulfilled, until a prosecution can be instituted for the escape.” “It did not require legislation to authorize the recapture of an escaped prisoner, and his confinement until he has-served out the full continuous term of his sentence.”
Section 56 of the Indiana statute above referred to is almost precisely like our § 191, Gen. Stat. 358, already referred to. Said §191 has reference to punishment for escapes, and was not intended to abrogate or annul previously-existing sentences. It means that if a convict escape, he may at any time afterward, however long or however short, be rearrested and imprisoned, and that he shall remain so imprisoned, even after the term for which he was originally sentenced has in fact and in law expired, until he can be prosecuted for the escape, or until such prosecution is abandoned. The section we think does not affect the law of this case in the least, In Dolan’s Case it was held:
“The sentence of a convict to imprisonment for a term expressed only by designating the length of time, is to be satisfied only by his actual imprisonment for that length of time, unless remitted by legal authority; and if a sentence is limited to take effect upon the expiration of a previous sentence, its period will not begin to run until the first sentence has so been fully performed or legally discharged. If a prisoner under sentence to be imprisoned for a term expressed only by the length of time, escapes during the term, the period during which he remains at large does not abridge the period of imprisonment which remains for him to suffer before fully performing the sentence.”
In the present case, the court sentenced Hollon to be imprisoned in the penitentiary “for the period of three years,” less five days. The court also designated the time when such “period” should commence. Now according to the authorities, the amount of the imprisonment prescribed by the court is material, and inheres in -the sentence; but the time when the imprisonment should commence is comparatively immaterial, and technically does not belong to the sentence. It is so immaterial that courts are not bound to hold that the imprisonment actually or in law did commence at the time when the court said it should commence, if in fact and by the convict’s own wrong it never did commence. It would probably be the safer practice in cases of this kind, where the convict escapes and remains absent until the whole of the time as fixed by the court for his imprisonment or for the execution of his sentence has elapsed, to take such convict again before the court that sentenced him, so that the'court might resentence him, or in other words, “order the execution of its former judgment.” State v. McClure, Phillips (N. C.), 491, 492; State v. Wamire, 16 Ind. 357; Ex parte Isaiah Bell, Supreme Court of Mississippi, 1879. But still we do not think that such practice is necessary. The records of the court show that the convict was sentenced, and the records of the penitentiary show that the sentence has not been executed. Nothing is therefore left to be shown except the identity of the prisoner, and the reasons for the failure to imprison him at the proper time. If in fact the prisoner is not the convict, or if in fact he has been pardoned or his sentence revoked, these things may be shown as well on proceedings in habeas corpus as on proceedings in the court where the convict was originally sentenced. We think that Hollon’s sentence is still in force — not executed; not revoked, not annulled, nor exhausted by lapse of time.
The return of the said Henry Hopkins to said writ of habeas corpus is therefore considered sufficient.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The principal question involved in this case is, whether a certain contract entered into between Abraham Livingston, (intestate of L. H. Livingston, plaintiff below, defendant in error,) of the first part, and E. F. Botkin and others, (defendants below, plaintiffs in error,) of the second part, is valid or not. When this case was formerly here, we held that said contract was prima facie valid, and that there was nothing then appearing in the case showing that the contract was not valid. (Botkin v. Livingston, 16 Kas. 39.) The case, however, is now presented in a different light, and whether the new facts now presented will require a different decision of the case, is the only question requiring our consideration. The only question, as the case is now presented, is: Was there sufficient consideration for the agreement of-the defendants below, Botkin and others? The facts are substantially as follows: Said contract was entered into April 1st, 1870. At that time the defendants were residents of Baxter Springs. They desired very much that the Missouri River, Fort Scott & Gulf railroad should be built to that place without delay. Livingston, however, opposed it. The road could not be conveniently built to Baxter Springs, except by building it across the northwest quarter of section 5, in township 34 of range 24, east. Livingston resided upon that quarter-section of laud, and he threatened violence if the railroad company should attempt to build its road across this land. He also threatened legal proceedings to enjoin the railroad company from building its road across the land, and employed counsel for that purpose. The defendants, anxious to have the road built without delay, then entered into said contract, which is in substance as follows:
“That in consideration of one dollar, this day paid to said parties of the second part by said first party, and in further consideration that the said party of the first part will permit the Missouri Eiver, Fort Scott & Gulf railroad company to build and complete said road through the northwest quarter of section 5, township 34, range 24, east of sixth principal meridian, without any hindrance or obstruction whatever, the said parties of the second part hereby agree to pay to the said party of the first part forthwith on demand, all damages which the commissioners of Cherokee county may assess, to be done to said land by the building of said railroad through said premises without any appeal whatever.”
The railroad company then built and completed its road across said land and to Baxter Springs, without any further opposition from Livingston. Afterward, said county commissioners assessed damages to said land as follows: For land actually taken, 7-^q- acres, at $10 per acre, $72.40; for hedges, 380 rods, at 35 cents per rod, one-half the actual cost, $133; for general damages to land in increasing the inconvenience in farming and laying off into fields, etc., $445; total, $650.40. Of this sum, the plaintiff was paid $140. The defendants then refused to pay anything more, and the plaintiff then brought this action to recover the balance. It appeared on the trial that Livingston never owned said quarter-section of land. He never had any right or title thereto, or interest therein, but was a mere trespasser thereon. He did not possess even a license from the owner to enter thereon. At the time said contract was made, the land belonged to the railroad company, and it still belongs to it. We suppose that no one will claim that the threats of violence constituted a sufficient consideration for said contract; and yet it was almost wholly, if not entirely because of such threats, that defendants entered into said contract. It does not 'appear that the defendants ever heard of Livingston’s threats to institute legal proceedings, and it certainly does not appear that they were in the least scared by them. Of course, legal proceedings would have been futile, and would not have delayed the building of the road a single minute. The railroad ■company had the right to build its road across its own land, and no court in the state would have prevented it. Therefore, the threats of instituting legal proceedings would also have been an insufficient consideration for said contract. And to desist from violence, and from other means of preventing the railroad company from building its road, is just what it was the duty of Livingston to do without being paid therefor; and therefore it can hardly be claimed that his desistance was a sufficient consideration upon which to found a contract. He had no right to claim that he should be paid for allowing the railroad company to do just what it had a right to do. He had no right to go upon the land at all, while the railroad company had all rights thereon. But the question will arise: Was not said one dollar a sufficient consideration for said contract? Now whether said one dollar was ever paid or not, is not very clearly shown. There is no evidence showing that it was paid, except the contract itself; and the other evidence would tend to show that it never was paid. Probably it never was paid, but for the purposes of this case we shall consider that it was paid. Then was the one dollar alone, after the failure of the other considerations, a sufficient consideration for the contract? Is the payment of one dollar a sufficient consideration for the repayment of $650.50? That it would not be, has been held in a case*similar to this. See Schnell v. Nell, 17 Ind. 29. It would at least be paying by one party and receiving by the other a very large rate of interest on the original amount of money received and paid. But we cannot consider this contract as merely a contract in good faith to pay and receive one dollar for $650.40. It is worse than that. It cannot be considered as a contract in good faith at all. It is an unconscionable contract,, extorted by means of threats of violence and wrong. This is true, whether the defendants knew that the land belonged to the railroad company <5r not. If they knew that the land belonged to the railroad company and not to Livingston, then the contract was clearly extorted from them by means of threats alone. But if they did not know that the land belonged to the railroad company, but believed that it belonged to Livingston, and he dealt with them as though it did belong to- him, then the contract was extorted from them by threats in connection with deception and fraud; and in either case the contract cannot be sustained. In either case the contract was procured by fraud, at least legal fraud, if not actual fraud. If the defendants did not know to whom the land belonged, but believed that it belonged to Livingston, then the fraud was actual. But if they knew to whom the land belonged, but yielded to Livingston’s threats merely for the purpose of obtaining what they had a right to have without paying for it and without any contract with Livingston, then the fraud was legal, if not actual. The contract, and, indeed, some of the other evidence, seem to show that the defendants believed that the land-belonged to Livingston, and none of the evidence shows that they believed otherwise; and the contract and some of the other evidence seem to show that Livingston dealt with the defendants as though he owned the land, and none of the evidence shows that he dealt with them in any other manner. Hence the weight or ’ preponderance of the evidence seems to indicate that Livingston was guilty of actual as well as of legal fraud in procuring said contract to be made. The consideration of one dollar was merely nominal. It really had no weight in inducing the defendants to enter into the contract. The agreement of Livingston to desist from hindering, obstructing and delaying the building of the railroad was the real and only consideration that induced the defendants to enter into the contract; or, in other words, the only consideration that induced the defendants to enter into said contract was Livingston’s agreement, in substance, that he would not put his threats of violence into execution, but would allow the railroad to be built. Now, as the real consideration for the contract must be dropped out as illegal, unwarrantable, and of no value, will the nominal consideration of one dollar support the contract? We think not. If there had been no illegal threats of violence; no illegal'threats to hinder the railroad company from doing just what it had a right to do; no threats of wrong of any kind, then, possibly, such a consideration would uphold the contract; for generally where a consideration is valuable, and no fraud or illegality has intervened, it is not necessary that the consideration should have any proportionate value to the thing to be done for it. Where men are left free to act, the law will generally allow them to make fools of themselves by agreeing to give much for little, if they choose to do so. In such cases, the law will generally allow them to suffer the consequences of their own folly. It is generally, but perhaps not always, the case, that only in cases of a total want of consideration, or of fraud or illegality, or where God or the public enemy or the statute of limitations intervenes, that men are relieved by law from the performance of their own contracts; and. then they must generally restore to the other party all that they have received from him, or the law will not assist them. In the present case, the contract is contaminated with fraud and illegality, and while the defendants may' have received one dollar and not more, they have returned $140.
We do not think that the plaintiff is entitled to recover in this case. The judgment of the court below will therefore be reversed, and cause remanded with the order that judgment be rendered for the defendants on the findings of the court below.
All the Justices concurring'. | [
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Rulon, J.:
Terry F. Walling, petitioner, appeals the district court’s summary denial of his petition for writ of habeas corpus under K.S.A. 60-1501. Petitioner argues the Kansas Parole Board (KPB) violated his rights to due process by conducting his parole hearing with only two members of the parole board present.
Petitioner was convicted of a class B felony and sentenced to a term of imprisonment of 20 years to life. In July 1994 he had a parole hearing. According to petitioner, only two members of the KPB attended that hearing.
Petitioner was subsequently notified that he had been passed for parole for 3 years. The decision to pass him was allegedly made by the two members of KPB who attended the hearing. The district court summarily denied his writ without holding a hearing.
DUE PROCESS
“A habeas corpus action is the appropriate procedure for reviewing decisions of the Kansas Parole Board.” Torrence v. Kansas Parole Board, 21 Kan. App. 2d 457, Syl. ¶ 1, 904 P.2d 581 (1995). The granting or denial of parole to an inmate is a matter of grace in this state and thus not a matter of fundamental right and does not involve a liberty interest. Gilmore v. Kansas Parole Board, 243 Kan. 173, 180, 756 P.2d 410, cert. denied 488 U.S. 930 (1988). Because parole is a privilege and a matter of grace exercised by the KPB, this court’s review of the denial is limited to whether KPB complied with the applicable statutes and whether its actions were arbitrary and capricious. Payne v. Kansas Parole Board, 20 Kan. App. 2d 301, 307, 887 P.2d 147 (1994); see K.S.A. 22-3710.
The two statutes in question are K.S.A. 22-3709 and K.S.A. 22-3713. As this case requires the interpretation of statutes, the issues involved are questions of law and this court’s scope of review is unlimited. State v. Denny, 258 Kan. 437, Syl. ¶ 1, 905 P.2d 657 (1995).
K.S.A. 22-3709 reads:
“(a) The chairperson and vice-chairperson of the Kansas parole board shall be designated by the governor. The chairperson of the board shall have the authority to organize and administer the activities of the board. The chairperson of the board may designate panels, consisting of three members of the board, which shall have the full authority and power of the board to order the denial, grant or revocation of an inmate’s parole or conditional release, or for crimes committed on or after July 1, 1993, grant parole for off-grid crimes or revocation of post-release supervision or to order the revocation of an inmate’s conditional release, upon hearing by one or more members of the panel. The director of the board shall act as secretary to the board.
“(b) Any decision of the Kansas parole board granting original parole to an inmate sentenced for a class A or class B felony or for off-grid crimes committed on or after July 1, 1993, shall be by unanimous vote of all members of the three-member panel acting on such parole except that, if two members of such panel vote to parole the inmate, the full membership of the board shall review the decision of the panel and may parole such inmate upon the vote of four members of the board.”
K.S.A. 22-3713 reads in relevant part:
“The Kansas parole board shall appoint a state director of the parole board who may appoint and prescribe, with the approval of the parole board, the duties of a deputy director and other employees required to administer the provisions of this act. The parole board may authorize one or more of its members to conduct hearings on behalf of the parole board.”
In this jurisdiction, statutory law requires the vote of two of the three members of the three-member panel before an A or B felon will be considered for parole by the entire board. Petitioner argues all three must be present at the hearing so that all three can hear the inmate and any relevant comments concerning his or her parole. Petitioner contends that absent a record of the vote of each member of the three-member panel, there is no way to tell if one of the two members present voted for parole. If one of the two did yote for parole, then petitioner argues the matter should have been forwarded for consideration by the entire board. He argues that conducting such a hearing without all three members being present is intolerable to fundamental fairness. As authority he cites Swisher v. Hamilton, 12 Kan. App. 2d 183, 740 P.2d 95, rev. denied 242 Kan. 905 (1987).
In Swisher, our court stated a petitioner’s burden of proof to avoid summary dismissal of a habeas corpus petition:
“[T]he maintenance and administration of penal institutions are executive functions and, before courts will interfere, the institutional treatment must be of such a nature as to clearly infringe upon constitutional rights, be of such character or consequence as to shock the general conscience, or be intolerable to fundamental fairness. [Citation omitted.] Therefore, to avoid summary dismissal of a K.S.A. 60-1501 petition, allegations must be made of shocking and intolerable conduct or continuing mistreatment of a constitutional stature.” [Citations omitted.] 12 Kan. App. 2d at 184-85.
K.S.A. 22-3713 states that the KPB may authorize one or more of its members to conduct hearings on behalf of the parole board. As such, the actions of the KPB under the facts presented are directly authorized by statute. Further, there is nothing in the record showing petitioner was indeed passed over for parole.
“It is appellants’ burden to designate a record that is sufficient to present their points and to establish the claimed error. Sterba v. Jay, 249 Kan. 270, 280, 816 P.2d 379 (1991). Without an adequate record, plaintiffs’ claim of alleged error fails. See, e.g., State v. Dunn, 249 Kan. 488, 496, 820 P.2d 412 (1991).” Smith v. Printup, 254 Kan. 315, 350, 866 P.2d 985 (1993).
Petitioner does not explain why haying two members of the panél conduct the hearing, but requiring all three to vote on the parole application, is shocking to the general conscience or fundamentally unfair. Under the statutes, the legislature has set up a process by which, if recommended by two of the three members of a panel of the KPB, an A or B felon’s parole will be considered by the entire five-member board. The statutes further provide that a hearing may be conducted by one or more members of the KPB. Petitioner cites no authority which has held such a procedure to be fundamentally unfair. Petitioner’s claim that only those who áttend the hearing vote on an inmate’s parole is unsubstantiated by the record or the statute. Although the better practice would be, especially from the point of view of a court being asked to review such proceeding, that the KPB have all members of the three-person panel present at parole hearings and make a record of such hearings, such is not required by statute.
STATUTORY INTERPRETATION
Petitioner asserts that K.S.A. 22-3709 somehow modifies the provisions of K.S.A. 22-3713. He claims the legislature clearly was concerned that A and B felons would not get a fair hearing if the KPB were allowed to enact its own procedures for dealing with such inmates. According to. petitioner, the legislature enacted K.S.A. 22-3713 to ensure A and B felons would receive a fair hearing; Petitioner provides no support for such an assertion, and without such support this argument lacks merit.
Further, petitioner’s stated issue does not match the argument he presents. Petitioner makes no contention in his brief, other than the caption of issue II, that the district court did anything improper; Petitioner simply argues that, by inference, K.S.A. 22-3709 modifies the express language of K.S.A. 22-3713.
. “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.” Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992).
“ ‘It is presumed the legislature understood the meaning of the words it used and intended to use them; that the legislature used the words in their ordinary and common meaning; and that the legislature intended a different meaning when it used different language in the same connection in different parts of a statute.’ [Citation omitted.]” Bank of Kansas v. Davison, 253 Kan. 780, 788, 861 P.2d 806 (1993).
The KPB’s actions here followed the express procedures in the statutes and cannot be arbitrary or capricious.
SUMMARY DENIAL
Petitioner claims the district court erred when dismissing his cause without conducting a hearing.
The issue petitioner raised in the district court was only concerned with whether it was illegal for the KPB to conduct parole hearings on A and B felons without all three members being present.
“Proceedings on a petition for writ of habeas corpus filed pursuant to K.S.A. 60-1501 are not subject to the ordinary rules of civil procedure. According to K.S.A. 60-1505(a), ‘[t]he judge shall proceed in a summary way to hear and determine the cause.’ In addition, the summary dismissal of a habeas corpus petition has been affirmed in a number of cases. [Citations omitted.]” 12 Kan. App. 2d at 184.
Because petitioner made no allegations of shocking and intolerable conduct or continuing mistreatment of a constitutional nature, the district court was acting well within its discretion in ruling on petitioner’s writ in a summary fashion.
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Marquardt, J.:
Ramona Lawrence and Betty Sanders appeal from the district court’s ruling that an option to purchase land created by a family settlement agreement in favor of Raymond C. Butts, Jr., (Raymond Jr.) could be exercised by the administratrix of the estate of Raymond Jr.
The will of Raymond C. Butts, Sr., (Raymond Sr.) devised real property (Tract 1) with a life estate to his wife, Marie L. Butts, including the power to sell and dispose of the property. Raymond Sr. devised the remainder, if any, of Tract 1 to Raymond Jr., Ramona, and Betty.
Raymond Sr.’s will provided that upon the death of his wife, the interests of Raymond Jr. in Tract 1 would be reduced by two-thirds of the then appraised value of the tract of real property which had been devised solely to Raymond Jr. (Tract 2). Raymond Sr.’s will granted Raymond Jr. a 10-year option to purchase the interests of Ramona and Betty in the portion of Tract 1 which is the subject of this appeal (Subject Property). The purchase price was to be set by an appraisal as specified in the will.
After Marie’s death, the two-thirds adjustment could not be made because of a disparity in the values of the tracts. Ramona, Betty, and Raymond Jr. entered into a family settlement agreement, which provided in part:
“1. Raymond C. Butts, Jr., will Quit Claim, release and assign all right, title and interest whatsoever in and to the E/2 W/2; W/2 NE/4 and N/2 SE/4 all in S29-T32-R20; and Lots 3 and 4 and E/2 SW/4 of S30-T33S-R20; and all of Section 5-T34S-R20 [Subject Property], over unto Betty Sanders and Ramona Lawrence, the same to be theirs absolutely; and Betty Sanders and Ramona Lawrence waive and release any right, tide and claim to two-thirds value of Section 6-T34S-R20 [Tract 2] back over unto Raymond C. Butts, Jr., his heirs or assigns.
“2. It is agreed however that Raymond C. Butts, Jr., shall have a five (5) year purchase option from date of death of Marie L. Butts to purchase Section 5-T34S-R20 [Subject Property] from Betty Sanders and Ramona Lawrence at the $74,640.00 appraised value set forth herein.
“4. This agreement shall be binding upon the parties, their heirs, assigns and successors in interest, and is the full and complete agreement between the parties to settle and close the Marie L. Butts estate.” (Emphasis added.)
Raymond Jr. died without exercising his option. E. Arlene Butts, administratrix of Raymond Jr.’s estate (Administratrix), filed a declaratory judgment action, stating that she was entitled to exercise the option on behalf of the estate. The district court ruled that the Administratrix could exercise the option. Ramona and Betty argue that the district court erred in so ruling.
This court has unlimited review as to the construction of written instruments. See Gore v. Beren, 254 Kan. 418, 427, 867 P.2d 330 (1994). When this court has before it the same written instruments as did the district court, we can examine and determine their meaning as well as that of the district court. See Springer v. Litsey, 185 Kan. 531, 535, 345 P.2d 669 (1959) (interpreting family settlement agreement).
Ramona and Betty argue that the option to purchase the Subject Property was personal to Raymond Jr. and cannot be exercised by the Administratrix.
An option created by will confers a right that is personal to the recipient and does not survive the death of the recipient. In re Estate of Maguire, 204 Kan. 686, 688, 466 P.2d 358, modified 206 Kan. 1, 476 P.2d 618 (1970).
Ramona and Betty reason that because the will had provided the original option to purchase the Subject Property to Raymond Jr., the subsequent option contained in the family settlement agreement did not survive the death of Raymond Jr. The Administratrix counters that she may exercise the option on behalf of Raymond Jr.’s estate because the option was created by contract and not by will.
Beneficiaries of a will may agree among themselves as to the distribution of an estate contrary to that of the will. In re Estate of Petty, 227 Kan. 697, 704, 608 P.2d 987 (1980). Such agreements are referred to as family settlement agreements or will compromise agreements.
“[Fjamily settlement agreements are favorites of the law and when fairly made, are to be given liberal interpretation and should not be disturbed by those who entered into them or by those claiming under or through them.” In re Estate of Thompson, 226 Kan. 437, 441, 601 P.2d 1105 (1979). “[Tjhe mutual promises of the contracting parties” provide sufficient consideration for the agreement. In re Estate of Harper, 202 Kan. 150, 159-160, 446 P.2d 738 (1968).
To be valid, a family setdement agreement must be in writing and acknowledged and approved by “all heirs, devisees and legatees, and all other interested or affected persons, all of whom must be competent or authorized to enter into such agreement.” K.S.A. 59-102(8); see In re Estate of Leathers, 19 Kan. App. 2d 803, 876 P.2d 619 (1994). “A family setdement agreement must be submitted to and approved by the district court in order to obtain a decree of final setdement and an assignment of die real estate in accord with its provisions. K.S.A. 59-2249; Brent v. McDonald, 180 Kan. 142, 152, 300 P.2d 396 (1956).” In re Estate of Wise, 20 Kan. App. 2d 624, 626, 890 P.2d 744 (1995).
In Budin v. Levy, 343 Mass. 644, 649, 180 N.E.2d 74 (1962), the court held that “[rjights under the [will compromise] agreement are wholly contractual and in no sense testamentary.” See First National Bank of Birmingham v. Brown, 287 Ala. 240, 247, 251 So. 2d 204 (1971); Woodward v. Snow, 233 Mass. 267, 274, 124 N.E. 35 (1919); Annot., 5 A.L.R. 1384 (discussing Woodward and similar cases).
Thus, the rule that a testamentary option is personal and does not survive the death. of the recipient is inapplicable to the family setdement agreement’s contractual option in favor of Raymond Jr.
The family setdement agreement provided that “[t]his agreement shall be binding upon the parties, their heirs, assigns and successors in interest.” The Administratrix correcdy notes that “[n]o Kansas case has directly determined whether an option contained in a contract can be exercised by the representative of a deceased optionee.”
Many Kansas cases implicitly recognize that an option to purchase land passes to the heirs of the option holder. See, e.g., Smerchek v. Hamilton, 4 Kan. App. 2d 346, 352, 606 P.2d 491 (1980).
Here, the family settlement agreement expressly made the contract binding upon the parties’ heirs, assigns, and successors. We conclude that the rights arising from a family settlement agreement are contractual in nature and not testamentary. An option to purchase real estate which is created by a family setdement agreement is contractual in nature.
Ramona and Betty argue that the district court erred in failing to consider the intent of the contracting parties when construing the family setdement agreement, that the district court improperly construed the language of the agreement, and that the district court erred in not considering facts set forth in affidavits.
The attorney who prepared the family setdement agreement stated in his affidavit that he “presumed that the option agreement was personal to Raymond C. Butts, Jr.” Betty stated in her affidavit that she was advised that the option agreement was personal to Raymond Jr. and not exercisable by anyone else.
“The primary rule in construction of any contract is to ascertain the intent of the parties, and such intent may best be determined by looking at the language employed and taking into consideration all the circumstances and conditions which confronted the parties when they made the contract:” Galindo v. City of Coffeyville, 256 Kan. 455, 467, 885 P.2d 1246 (1994).
If a contract is not ambiguous, the court can look only to the four comers of the instrument to determine the intent of the parties. Metropolitan Life Ins. Co. v. Strnad, 255 Kan. 657, 661, 876 P.2d 1362 (1994); TMG Life Ins. Co. v. Ashner, 21 Kan. App. 2d 234, 242, 898 P.2d 1145 (1995); see Smerchek, 4 Kan. App. 2d at 347. But see Restatement (Second) of Contracts § 212, comment b (1979) (“It is sometimes said that extrinsic evidence cannot change the plain meaning of a writing, but meaning can almost never be plain except in a context.”).
If a contract is ambiguous concerning a particular matter, “ ‘facts and circumstances existing prior to and contemporaneously with its execution are competent to clarify the intent and purpose of the contract in that regard, but not for the purpose of vaiying and nullifying its clear and positive provisions.’ [Citations omitted.]” First Nat’l Bank of Olathe v. Clark, 226 Kan. 619, 624, 602 P.2d 1299 (1979).
Thus, a threshold question is whether the family settlement agreement is ambiguous. See Smerchek, 4 Kan. App. 2d at 347. A contract is ambiguous when the words used to express the intention of the parties may be understood to reach two or more possible meanings. Smerchek, 4 Kan. App. 2d at 347; see Simon v. National Farmers Organization, Inc., 250 Kan. 676, 680, 829 P.2d 884 (1992).
Ramona and Betty essentially argue that because paragraph 2 of the agreement and the recitals do not provide that the family settlement agreement is applicable to the heirs and assigns of the parties, the language in paragraph 4 expressly making the agreement applicable to the heirs and assigns is rendered ambiguous. This argument patently lacks merit. The agreement is clear and unambiguous.
Ramona and Betty’s argument that the district court erred in not considering the affidavits of Betty and the attorney who prepared the family settlement agreement similarly lacks merit. When a contract is not ambiguous, it would be error to consider such extrinsic evidence of the parties’ intent. See Strnad, 255 Kan. at 661; TMG, 21 Kan. App. 2d at 242; 17A Am. Jur. 2d, Contracts § 337, pp. 343-44.
The district court correctly ruled that the family settlement agreement is an unambiguous contract and that the option to purchase the Subject Property may be exercised by the Administratrix.
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Lewis, J.:
Defendant was convicted of driving under the influence of alcohol (DUI) and driving left of center. He appeals from those convictions.
We affirm.
Defendant first argues that all of the evidence obtained from the stop of his vehicle was inadmissible because the stop was illegal. He raised this issue to the trial court by way of a motion to suppress, which was denied.
The facts show that Deputy Michael Lowery was at a convenience store in the early morning hours on the day of defendant’s arrest. While he was at the store, a motorist pulled in and reported seeing a pickup being driven erratically.
Deputy Lowery drove in the direction he was told the pickup was heading and observed the pickup about % of a mile ahead of him. He began following the vehicle and saw it cross left of center four separate times. He also saw the vehicle drive off the shoulder and weave within its own lane.
On the basis of the repeated left of center violations, Deputy Lowery stopped the vehicle. Defendant was driving the vehicle, his eyes were watery and bloodshot, and he smelled of alcohol. Defendant admitted he had been drinking, and the officer determined that defendant could not pass the field sobriety tests. He was taken to the law enforcement center, where a breath test was administered, and his blood alcohol concentration was determined to be .179.
After hearing the evidence, the trial court found defendant guilty of DUI, in violation of K.S.A. 1993 Supp. 8-1567(a)(3).
In denying defendant’s motion to suppress, the trial court indicated it based its decision on the officer’s testimony that he had observed defendant drive left of center four different times.
We agree with the trial court. The officer observed defendant commit four left of center violations, which furnished ample grounds for stopping the vehicle. “The officer making the stop must be able to articulate the basis for his reasonable suspicion. What is reasonable is based on the totality of circumstances and is viewed in terms as understood by those versed in the field of law enforcement.” State v. Toney, 253 Kan. 651, 656-57, 862 P.2d 350 (1993).
In State v. Field, 252 Kan. 657, 660-61, 847 P.2d 1280 (1993), the Supreme Court held that a police officer was authorized, pursuant to K.S.A. 22-2402(1), to stop a vehicle driving erratically, even absent a traffic violation, on the reasonable suspicion that the driving might be impaired in some manner, as a public safety precaution. In Field, weaving within the car’s own lane was found to be sufficient grounds to justify the stop.
On the basis of Toney and Field, we hold that the officer in this case had probable cause to stop defendant’s vehicle. The trial court’s decision denying defendant’s motion to suppress is supported by substantial competent evidence and is affirmed. See State v. Toney, 253 Kan. at 656.
The original complaint filed in this case charged defendant with driving with a blood alcohol concentration of .10 or above. The law was changed in July 1993, reducing the standard to .08 or above. In light of this change in the law, the State moved to amend its complaint to conform to the new law, and the trial court granted the motion. Defendant argues on appeal that the trial court erred in granting the State’s motion to amend.
The standard of review on this issue is abuse of discretion. See State v. Woods, 250 Kan. 109, 115, 825 P.2d 514 (1992). We find none in this case. The amendment took place before the trial began and was one of a technical nature and did not prejudice or hamper defendant. Defendant’s blood alcohol concentration was .179, well above both .08 and .10. In addition, defendant was convicted under K.S.A. 1993 Supp. 8-1567(a)(3), which does not contain any blood alcohol requirement.
Defendant’s argument is without merit. The trial court did not err in allowing the amendment.
Finally, defendant argued that his right to a speedy trial was violated.
He bases his argument on K.S.A. 22-3402(2), which provides:
“If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant.”
Defendant was brought to trial on the charges within 170 days of his arraignment. If we subtract out the continuances that are chargeable to defendant, he was brought to trial within 107 days.
Defendant makes a novel argument. He does not argue that he was denied a speedy trial based upon delay in bringing him to trial. He argues that the trial itself took too long to complete.
We agree that the trial was unusually protracted. It was conducted on 3 separate days. However, approximately 3 months passed between the first and second days of the trial, and approximately 1 month passed between the second and third days of the trial. Defendant argues that the State had an obligation to complete his trial within the 180-day time format.
Defendant’s argument is without merit. It is clear that his trial was not completed within 180 days. However, K.S.A. 22-3402 requires only that a defendant be brought to trial within 180 days of his or her arraignment; it does not require that the trial be con- eluded within that time frame. We are aware of no authority, statutory or otherwise, nor does defendant supply us with any, that requires a trial to be started and completed within 180 days or within any specific time frame.
We are at a loss as to why the trial took so long to complete. It appears that some of the delay is attributable to the trial judge’s schedule, and part of the delay is attributable to the parties. At one point, the trial court said:
“I just want this case to be done. This is a DUI trial that has been — on many situations it’s been my fault that it’s been continued because of court matters I’ve had. But it’s been continued many times for you as weE, Mr. SaviEe. To convenience your witness, Ms. Daniels, was part of the problem on at least one occasion.”
It appears from the trial court’s comments that there is enough blame to spread among the trial court and both parties to this action. The record, however, does not permit us to determine anything more than this general observation. The record is simply not sufficient to indicate who is principally to blame for the 4-month period of time over which this case was tried.
We suspect there may exist some reasonable time frame within which a trial should be completed. However, defendant has failed to show us that his rights were violated in this case or that he was in any way prejudiced by the delay in completing his trial. He has further failed to show us that all of the delay in completing this trial is the fault of the State. Defendant has failed to show us that any circumstances exist upon which we might hold that his trial was not completed within a reasonable time.
We hold the speedy trial rights specified by K.S.A. 22-3402 apply only to the commencement of the trial. In this case, defendant was brought to trial within 180 days of his arraignment, and his speedy trial rights were not violated by the procedures followed.
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|
Gernon, J.:
The Pink Cadillac Bar and Grill (Pink Cadillac) in Hays, Kansas, was severely damaged by an arson fire on January 28,1991. The Pink Cadillac was operated by Pink Cadillac Bar and Grill, Inc. The original officers of the corporation were Kenny S. Quan and Vem Jacobs. Jacobs was the manager of the Pink Cadillac. In addition, David L. Staab was an owner, but, with the agreement of Quan and Jacobs, was considered a “silent partner” because he worked for a company, Mid-Central Sysco (Sysco), which sold food and restaurant supplies to other restaurants and bars in the area.
Staab and Quan filed a claim for proceeds under their insurance policy with United States Fidelity and Guaranty Company (USF&G). The coverage under the policy was limited to $77,000 for the building; $75,000 for personal property in the building; and $20,000 for business interruption loss.
In the course of the investigation concerning the fire, Staab was questioned by USF&G. Staab stated that he had become upset the day before the fire because a Sunday newspaper article revealed that he was an owner of the Pink Cadillac. In his own mind, he determined that either Quan or an employee by the name of Lien Quach had given out this information, although he had intended to remain a silent partner.
Staab indicated that on the morning of the fire, he had gone to a nursing home around 7 a.m. to obtain a purchase order. When he arrived at the nursing home, the purchase order had not been prepared, so he decided to stop by the Pink Cadillac to pick up some food to take to another restaurant he served as part of his employment with Sysco. When he arrived at the Pink Cadillac, he observed several fire trucks in the parking lot. He told the firefighters he was an owner and unlocked the building so they could extinguish the fire.
USF&G paid the First National Bank & Trust of Hays (Bank), the mortgage holder, $46,944.40 for the cost of repairs to the Pink Cadillac building. However, USF&G refused Staab and Quaris claims for the losses associated with the personal property and the business interruption. The claim was refused on the belief that Staab had either set the fire or concealed the fact that he had it set by another person.
The Bank then brought suit against Staab, Quan, their spouses, Pink Cadillac Bar & Grill, Inc., and USF&G, alleging that notes due it were delinquent and seeking proceeds for the losses claimed under the USF&G policy but denied by USF&G. The Staabs, the Quans, and Pink Cadillac subsequently filed cross-claims against USF&G for the insurance proceeds and assigned their potential recovery to the Bank. In return, the Bank’s claims against the Staabs, the Quans, Pink Cadillac, and USF&G were dismissed. The spouses of Staab and Quan were also dismissed from the lawsuit.
At the jury trial, there was much conflicting evidence as to the times of Staab’s leaving his home both the night before the fire and the morning of the fire.
The jury found that Staab did not intentionally set the fire. The jury further found that Staab concealed or misrepresented a material fact during USF&G’s investigation of the fire. There is nothing in the record as to what fact or facts the jury considered material which were concealed or misrepresented.
USF&G filed a post-trial motion for judgment in its favor due to the language of the insurance policy and a motion for a new trial in the event the post-trial motion for judgment was denied. Staab filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial. Quan and Pink Cadillac filed motions for judgment notwithstanding the verdict, additur, or a new trial on the issue of damages.
The trial court ultimately denied the motions of Staab and USF&G. The court also found that the severability clause created an ambiguity in USF&G’s policy and ruled that Staab’s conduct should not exclude Quan, an innocent coinsured, from recovering under the policy. The court then granted Quan and Pink Cadillac’s motion for a new trial on damages. The court further found, in a subsequent ruling, that Pink Cadillac was also entitled to recover on the policy, since it was a named insured.
A bench trial was then held on the issue of damages. The court awarded Quan and Pink Cadillac the policy limit of $75,000 for the loss of personal property and $8,431.48 for the business interruption loss. Additionally, the court found that Staab was not a named insured under the policy at the time of the loss.
USF&G’s motion to reconsider this verdict was denied. Quan and Pink Cadillac’s motion for attorney fees was granted, and they were awarded $110,491.17 in attorney fees. Every party left in the lawsuit at the time of any of the judgments or rulings by the trial court appealed or cross-appealed rulings made by the trial court or its determination of damages.
Severability Clause
USF&G argues the trial court erred in finding an ambiguity in the insurance policy. Specifically, it argues the trial court ignored the distinctive division of the policy into separate coverage parts. Since this issue involves the interpretation of a written insurance policy, our scope of review is de novo. Northern Assur. Co. of America v. Farm Bur. Mut. Ins. Co., 249 Kan. 662, 665, 822 P.2d 45 (1991).
In the policy at issue in the present case, the “Separation of Insureds” clause provides:
“Except with respect to the limits of Insurance, and any rights or duties specifically assigned in this Coverage Part to the first Named Insured, this insurance applies:
a. As if each Named Insured were the only Named Insured; and
b. Separately to each insured against whom claim is made or ‘suit’ is brought.”
USF&G contends this severability clause pertains only to the liability portion of the policy and does not affect the concealment clause which is attached as an endorsement to the property damage coverage part of the policy.
The concealment clause states:
“We will not pay for any loss or damage in any case of:
1. Concealment or misrepresentation of a material fact, or
2. Fraud; committed by an insured at any time relating to a claim under this policy.”
Quan claimed that he was an innocent coinsured and was, therefore, entitled to insurance proceeds even if Staab was denied coverage. USF&G contended that the concealment clause precluded all of the insureds from coverage.
The trial court found that the concealment clause was clear and noted that USF&G’s contention would be correct if its policy did not also contain the severability clause. The court relied upon Catholic Diocese of Dodge City v. Raymer, 251 Kan. 689, 840 P.2d 456 (1992).
The trial court read Raymer to state that the “separation of insured” clause created an ambiguity which, in the case before the trial court, allowed Quan to recover the proceeds. The trial court subsequently found that Pink Cadillac was also entitled to recover.
“Policies must be construed according to the sense and meaning of the terms used, and if the language is clear and unambiguous, it must be taken in its plain, ordinary and popular sense.” Bramlett v. State Farm Mutual Ins. Co., 205 Kan. 128, 130, 468 P.2d 157 (1970). Courts should not attempt to create an ambiguity where, in common sense, there is none. Bell v. Patrons Mut. Ins. Ass’n, 15 Kan. App. 2d 791, 794, 816 P.2d 407, rev. denied 249 Kan. 775 (1991). “[T]he test to determine whether an insurance contract is ambiguous is not what the insurer intends the language to mean, but what a reasonably prudent insured would understand the language to mean.” Farm Bur. Mut. Ins. Co. v. Winters, 248 Kan. 295, 300, 806 P.2d 993 (1991).
Pink Cadillac and Quan rely upon McCauley Enterprises v. New Hampshire Ins. Co., 716 F. Supp. 718 (D. Conn. 1989). In McCauley, Raymond Esposito and McCauley Enterprises, Inc., brought an action to recover on an insurance policy so they could be named coinsureds and recover proceeds for damages caused by a fire set by the named insured. Cross-motions for summary judgment were filed, and the court ruled that disputed issues of fact remained as to whether the policy could be reformed. New Hampshire Insurance Company (New Hampshire) contended that reformation of the policy to include Esposito as an insured was immaterial because an exclusionary clause would preclude them from recovery if the policy was reformed, and, if it was not reformed, Esposito had no insurable interest. The relevant exclusion to the insured real property stated that New Hampshire “ ‘shall not be liable for loss occurring . . . while the hazard is increased by any means within the control or knowledge of the insured.’ ” 716 F. Supp. at 720.
The district court found that the exclusionary clause was ambiguous based upon “ ‘the insured’ ” language in the clause and the policy’s definition of an “ ‘insured.’ ” 716 F. Supp. at 720. The court read the policy’s definition of an “insured” in conjunction with the exclusionary clause and found that the coinsured’s interests were severable. The court concluded by noting that if the insurance policy was reformed to include Esposito as a named insured, he would be entitled to recover the benefits under the real property section of the policy as an innocent coinsured. The court also noted that Esposito would not be entitled to personal property coverage because the exclusion to that coverage included “ ‘any insured.’ ” 716 F. Supp. at 721.
In Raymer, Anthony Hammeke, a minor, participated in acts of vandalism at a school. The Catholic Diocese of Dodge City (Diocese), owner of the school, filed a petition against Anthony and his parents, alleging a cause of action for property damage against Anthony and for property damage against his parents based on their failure to exercise reasonable parental control. The Diocese also contended that the parents were liable on their statutory liability pursuant to K.S.A. 38-120 for the damages caused by Anthony.
The parents notified their homeowners insurance carrier, Farmers Insurance Co., Inc., (Farmers) of the action. Subsequently, a default judgment in rem was entered against the parents for failure to exercise reasonable parental care in controlling and supervising Anthony, and damages were awarded to the Diocese. The Diocese then filed an order of garnishment against Farmers, but Farmers answered by claiming it was not indebted to the Hammekes under their homeowners policy because the policy did not cover property damage either expected or intended by the insured. The trial court ruled in favor of Farmers, but this court reversed, and the Supreme Court granted review. The Kansas Supreme Court concluded that “the only question for this court to determine is whether the homeowners policy’s severability of interests clause makes ambiguous the otherwise unambiguous language of the policy’s exclusion for intentional acts by an insured, thereby providing coverage to the parents for their alleged negligent supervision of their child.” 251 Kan. at 692.
The court in Raymer stated that Kansas does not look to the underlying cause of the injury to determine coverage, but looks to the specific theory alleged. The court held that because the Diocese had alleged separate theories of liability against Anthony and his parents, die effect of the exclusionary clause had to be considered with respect to each of the insureds based on the distinct theory of liability alleged. The Kansas Supreme Court reversed the district court’s award of summary judgment to Farmers in the garnishment action and remanded the case with instructions to enter summary judgment for the Diocese.
Here, the policy clearly reveals that the concealment clause appears as an endorsement to the commercial property coverage part of the policy. The severability clause is distincdy separated from this section and is placed in the commercial general liability portion of the policy. The language of the severability clause also indicates that it is intended to apply to liability actions and not actions to enforce property coverage. The clause states that “this insurance applies... [separately to each insured against whom claim is made or ‘suit’ is brought.” Claims are not being made against the insureds in this action but against the insurer for coverage. In addition, the language preceding and following the clause states that “this insurance” pertains to the general liability coverage. Therefore, it is our conclusion that when read in its entirety, the policy here is not rendered ambiguous by the severability clause.
The language of the concealment clause, however, raises an entirely different issue so far as coverage being extended to Pink Cadillac and Quan. After the new trial on damages, the court issued a memorandum decision awarding Quan and Pink Cadillac $83,431 in insurance benefits. As part of its reasoning the court stated:
“The Defendant contends that since named insured Dave Staab was found by the jury to have concealed or misrepresented a material fact during the investigation that the actual loss of the plaintiff should be cut in half. The court has a couple of problems with this argument. First the evidence is clear that Dave Staab was not endorsed by the defendant as an insured until after the fire occurred. Secondly the evidence is clear to the court that the actual insured was Pink Cadillac, Inc. a Kansas corporation. The court finds nothing in the law or the policy that allows one party to a contract to unilaterally amend the agreement without the consent of the other parties. The actual named insureds under this policy at the time of the loss were Kenny Quan and Pink Cadillac, Inc. Neither of these plaintiffs were found to have had any complicity in the arson fire.”
“Where the trial court has made findings of fact and conclusions of law, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law.” Tucker v. Hugoton Energy Comp., 253 Kan. 373, 377, 855 P.2d 929 (1993).
The policy indicates that “Vem Jacobs & Kenny Quan DBA Pink Cadillac” were originally named as the insureds and the policy period was to run from January 17, 1991, to January 17, 1992. The policy also includes, however, an endorsement changing the named insured to “Dave Staab & Kenny Quan DBA Pink Cadillac” that was effective on January 17,1991. The date of the fire was January 28, 1991.
The record reveals that two witnesses offered testimony concerning this endorsement. Gene Stramel, an independent insurance agent, testified that Jacobs and Quan contacted him about obtaining coverage on the Pink Cadillac after their previous insurance was canceled. Stramel stated that he issued them an USF&G policy. Stramel stated that Staab was not originally included on the policy because he was not aware of Staab’s ownership in the business. He also noted that Staab was added to the policy once his interest in the Pink Cadillac was discovered.
During the subsequent trial on damages, Craig Turner, an investigator for USF&G, stated that the endorsement to the policy occurred after the fire but was executed retroactively to the date the policy became effective, January 17,1991. He stated that Staab or Quan probably authorized the endorsement because the insurance agent, Stramel, would not have requested the endorsement without their consent.
It is clear the purpose of the endorsement was to have Staab’s interest in the Pink Cadillac indicated in the policy. It is not clear, however, whether Quan and Staab actually consented to the endorsement.
Some confusion surrounds this issue on appeal. The pretrial order indicates that Staab and Quan were arguing that they purchased the policy from USF&G on January 17, 1991, and claimed benefits for the damages to the Pink Cadillac as part of their contentions and theories of recovery. The pretrial order, however, does not mention any challenge to the validity of the endorsement adding Staab as an insured. By finding that Quan and Pink Cadillac did not assent to the endorsement, the trial court, in essence, relied on an issue and theory of recovery outside the pretrial order. See K.S.A. 60-216; Herbstreith v. de Bakker, 249 Kan. 67, Syl. ¶ 1, 815 P.2d 102 (1991) (“The pretrial order under K.S.A. 60-216 controls the course of the action unless modified to prevent manifest injustice. An issue or claim for relief that is not contained in the pretrial order should not be entertained by the trial court.”). We conclude the trial court erred in making such finding.
“It is the general rule that exceptions, limitations and exclusions to insuring agreements require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms.” Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145, 149, 519 P.2d 737 (1974). The exclusion must be given its plain, ordinary meaning. Central Security Mut. Ins. Co. v. DePinto, 235 Kan. 331, 333, 681 P.2d 15 (1984).
The parties cite numerous cases on whether an innocent coinsured is entitled to coverage. In Catholic Diocese of Dodge City v. Raymer, 16 Kan. App. 2d 488, 493, 825 P.2d 1144, aff'd 251 Kan. 689, 840 P.2d 456 (1992), this court concluded that “ ‘[a]n insured’ or ‘any insured’ refers to any and all insureds under the policy.” Accordingly, since Staab was an insured under the policy and the language of the concealment clause refers to “an insured,” Pink Cadillac and Quan are precluded from coverage.
The issues concerning the language of the clause are tied with the issues concerning whether Staab either concealed or misrep resented a material fact and whether there was substantial competent evidence of a misrepresentation of a material fact by Staab relating to the cause of the fire.
Staab contends there was insufficient evidence to support the juiy’s verdict that he concealed or misrepresented a material fact during USF&G’s initial investigation into the fire.
“[W]hen a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, [an appellate court] does not 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, supports the verdict, it will not be disturbed on appeal.’ ” Brown v. United, Methodist Homes for the Aged, 249 Kan. 124, 127, 815 P.2d 72 (1991) (quoting Wisker v. Hart, 244 Kan. 36, 37, 766 P.2d 168 [1988]).
In Fine v. Bellefonte Underwriters Ins. Co., 725 F.2d 179 (2d Cir. 1984), cert. denied 474 U.S. 826 (1985), the Second Circuit Court of Appeals discussed the materiality requirement to such a finding. In Fine, the insured’s commercial warehouse burned when the sprinkler system froze. The insured falsely stated to the insurer during an examination under oath that the temperature gauge controlling the sprinkler system was set at 40 degrees when in fact he had instructed his employee to set the temperature at 25 degrees. The trial court held the insured’s misrepresentations were immaterial because they did not contribute to the loss. The Second Circuit reversed, holding that “the materiality requirement is satisfied if the false statement concerns a subject relevant and germane to the insurer’s investigation as it was then proceeding.” 725 F.2d at 183. The Court of Appeals further noted:
“It thus appears that materiality of false statements is not determined by whether or not the false answers deal with a subject later determined to be unimportant because the fire and loss were caused by factors other than those with which the statements dealt. False sworn answers are material if they might have affected the attitude and action of the insurer. They are equally material if they may be said to have been calculated either to discourage, mislead or deflect the company’s investigation in any area that might seem to the company, at that time, a relevant or productive area to investigate.” 725 F.2d at 184.
In Kansas, “[a] matter is material if it is one to which a reasonable man would attach importance in determining his choice of action in the transaction in question.” Griffith v. Byers Construction Co., 212 Kan. 65, 73, 510 P.2d 198 (1973). Applying the reasoning in Fine to this definition, a false statement is material if a reasonable insurance company, in determining its course of action during the investigation, would attach importance to the fact misrepresented. See Long v. Insurance Co. of North America, 670 F.2d 930, 934 (10th Cir. 1982).
The problem in the present case is that the juiy did not specify the nature of the concealment or the misrepresentation. USF&G presents 10 incidents of Staab’s alleged false statements it claims were material in denying Staab’s and Quan’s claim for coverage.
After reviewing these incidents and the record in the light most favorable to USF&G, substantial competent evidence does exist to support the jury’s finding. For the sake of brevity, a few examples will be addressed: First, Staab told USF&G during his examination under oath that no one from Sysco had expressed concern about his involvement with the Pink Cadillac. However, Carl Canova, one of Staab’s supervisors at Sysco, stated that he told Staab it was not good judgment to be involved in the restaurant business. Second, Staab also stated at trial that he was not mad about the néwspaper article revealing his ownership in the Pink Cadillac. Yet, both Quach and Staab’s wife, Rebecca, testified that Staab was very upset about this revelation. Third, Staab mentioned during the investigation that he went to the nursing home around 7 a.m. on the morning of the fire, but two nursing home employees testified that Staab arrived at approximately 6 a.m. and stayed for only a few minutes.
While these discrepancies appear insignificant when viewed with hindsight, Staab’s statements could reasonably have had ah impact on USF&G’s investigation. The questions USF&G asked Staáb were material to its investigation into whether he was involved in the fire and whether the claim should be allowed. Consequently, the jury’s finding that Staab concealed or misrepresented a material fact during the investigation is supported by the evidence.
Staab next argues there is insufficient evidence to establish that he misrepresented a material fact concerning the cause of the loss. The parties continue to argue and apply their own interpretations to the jury’s finding that Staab concealed or misrepresented a material fact during USF&G’s investigation into the fire loss. As noted by the parties, it is pure speculation as to what fact or facts the jury found were materially concealed or misrepresented. Staab’s and USF&G’s efforts to force this court to make a factual determination regarding Staab’s alleged involvement in the fire is outside this court’s scope of review. See McKissick v. Frye, 255 Kan. 566, 592, 876 P.2d 1371 (1994).
USF&G would further have us consider whether another exclusion provision prevents Pink Cadillac and Quan from recovering insurance benefits from the loss. However, USF&G did not argue this issue during trial, and a decision was never specifically rendered on it. A party is not permitted to raise an issue not previously presented to the trial court or inconsistent with its position before the trial court unless the newly asserted argument only involves a legal issue arising on proven or admitted facts. Baugher v. Hartford Fire Ins. Co., 214 Kan. 891, 901, 522 P.2d 401 (1974); Higher Educ. Assistance Foundation, Inc. v. Glenn-Healy, 17 Kan. App. 2d 345, 348, 836 P.2d 25 (1992).
The provision asserted by USF&G states that it will not pay for any loss or damage caused by, or resulting from, the following:
“h. Dishonest or criminal act by you, any of your partners, employees, directors, trustees, authorized representatives or anyone to whom you entrust the property for any purpose:
(1) Acting alone or in collusion with others; or
(2) Whether or not occurring during the hours of employment.
“This exclusion does not apply to acts of destruction by your employees; but theft by employees is not covered.”
USF&G argues that Staab’s concealment about his involvement in having set the fire while making a claim under the policy for the loss constitutes a dishonest act by an authorized representative of the Pink Cadillac.
USF&G asks us to interpret the insurance policy and then apply that interpretation to facts which were never established at trial. It was hotly disputed whether Staab was involved in the arson, and the jury specifically found that he did not set the fire. Moreover, while we have determined that there was substantial competent evidence to support a finding that Staab concealed a material fact during USF&G’s investigation into the fire, this concealment would not constitute a dishonest act under the language of the policy because it did not cause or result in the loss. Because Staab’s alleged involvement in the fire was never proven at trial, this issue is not properly before this court.
Prior Insurance Claims Evidence and Admission of Inaccurate Photograph
USF&G argues the trial court erred in granting Staab’s motion in limine which prevented it from introducing evidence of a prior civil wrong and in refusing to grant a new trial when Staab admitted a false exhibit into evidence and then commented on this evidence in closing arguments to the jury. Given our interpretation of the insurance policy, these issues are moot.
Instruction on Definition of Concealment or Misrepresentation
In his cross-appeal, Staab argues the trial court erred by refusing to give a fraud instruction adapted from PIK Civ. 2d 14.40. Staab’s proposed instruction stated:
“In order for Defendant to prevail on its claim of concealment and misrepresentation it must prove:
1. That false representations were made by Dave Staab as a statement of existing and material fact.
2. That the representations were known to be false by the party making them or recklessly made without knowledge concerning them.
3. That the representations were intentionally made for the purpose of inducing another party to act upon them.
4. That the other party reasonably relied and acted upon the representations made.
5. That the other party sustained damage by relying upon them.
“A representation is material when it relates to some matter that is so substantial as to influence the party to whom it was made.”
While the record reveals that Staab submitted the proposed instruction to the trial court, it does not reveal that Staab raised any objection to the court’s failure to give the instruction before the jury began deliberating.
A party may not assign as error the giving or the failure to give an instruction unless the party objects thereto before the jury re tires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for objection, unless the instruction is clearly erroneous. K.S.A. 60-251(b). “An instruction is clearly erroneous when the reviewing court reaches a firm conviction that, if the trial error had not occurred, there was a real possibility that the jury would have returned a different verdict.” Noon v. Smith, 16 Kan. App. 2d 818, Syl. ¶ 2, 829 P.2d 922 (1992). Because Staab did not object to the court’s failure to give his requested instruction, this court may only reverse if the exclusion of die instruction was clearly erroneous.
As USF&G points out, Staab’s proposed instruction misstates the law as it pertains to an insurer’s defense of concealment or misrepresentation. Other jurisdictions have distinguished common law fraud from this insurance defense. These jurisdictions recognize that, unlike an action for fraud, an insurer who raises the defense of concealment or misrepresentation does not have to establish that it actually relied on the concealment or misrepresentation or that it suffered an injury. See e.g., Rego v. Connecticut Insurance Placement Facility, 219 Conn. 339, 346-47, 593 A.2d 491 (1991); Mutual of Enumclaw Ins. v. McBride, 295 Or. 398, 403-04, 667 P.2d 494 (1983); St. Paul Mercury v. Salovich, 41 Wash. App. 652, 656, 705 P.2d 812, rev. denied 104 Wash. 2d 1029 (1985). Given this distinction, the trial court’s failure to give the instruction was not clearly erroneous because the requested instruction did not accurately define the defense.
Staab, Quan, and Pink Cadillac raise several other issues concerning the judgment itself, including whether the court erred in ruling that Pink Cadillac and Quan suffered a business loss of $84,031.48; whether the court erred in denying prejudgment interest; and whether the attorneys for Staab, Quan, and Pink Cadillac are entitled to reasonable attorney fees for the prosecution of the appeal. Given our rulings on the language of the policy and our conclusion that the case must be reversed on the basis of the in terpretation of the concealment and severability clauses, these issues are either rendered moot or reversed consistent with our rulings herein.
Reversed. | [
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Gernon, J.:
This is an interlocutory appeal pursuant to K.S.A. 60-2102(b) and Kansas Supreme Court Rule 4.01 (1995 Kan. Ct. R. Annot. 23).
The facts of this dispute center on the sale of a residence in Johnson County and the weight and wording of a “Buyer’s Acknowledgement and Agreement.”
The parties included in this appeal are:
(a) Lawrence and Margaret Hamtil, plaintiffs in district court, appellees here, purchasers of real estate;
(b) J.C. Nichols Real Estate (Nichols), appellant here; and
(c) Anne Abbott and Gabrielle Jarvis, appellants here, agents of Nichols.
Others named or involved in the dispute include:
(a) Walter and Maty Herrstrom, sellers;
(b) Wayne Ludden, termite inspector, employed by W. B. McCloud & Co., Inc., d/b/a Sears Authorized Pest Control;
(c) Stephen T. Adams, attorney retained by the Hamtils to represent them in the purchase of the property; and
(d) Bruce Kelly d/b/a Custom Home Inspections, who performed mechanical and structural inspection of the property.
The Kansas Association of Realtors filed an amicus curiae brief.
Abbott and Jarvis were listing agents for real estate owned by the Herrstroms. The Hamtils viewed the property by themselves the first time they inspected the property and returned 3 days later, with Jarvis, to tour the house again.
The Hamtils signed a contract to purchase the house and an agency disclosure agreement.
The Hamtils were given a Seller’s Disclosure Statement which stated that the Herrstroms did not know of any water leakage or damage in or to the house and that they were not aware of any problems with the foundation or the roof of the house. The statement revealed that the house had been treated for termites in 1985 and had been inspected annually since. There was no mention of any termite damage.
The Hamtils contacted Bruce Kelly of Custom Home Inspections and Wayne Ludden, a termite inspector, to inspect the house. Neither reported any significant problems with the house.
The sale closed on July 30,1993, and the Hamtils took possession on July 31. They immediately discovered that water had leaked into the house at several places and that there was rotted wood throughout the house.
The Hamtils sued everyone and every entity who had any contact with the house, its inspections, or the paperwork associated with the sale.
The Hamtils asserted negligence and negligent misrepresentation claims against Nichols and its agents, Abbott and Jarvis. They alleged the realtors made false statements about the condition of the house.
Nichols, Abbott, and Jarvis moved for summary judgment, contending that the Buyers Acknowledgement and Agreement stated that the Hamtils were not relying on any representations made by the realtors. The trial court denied the motion, stating that “the Court believes that the public policy of Kansas should not allow the language set out in the Buyer s Acknowledgment and Agreement ... to bar actions by home buyers against real estate brokers for negligent misrepresentation.”
We reverse and remand with directions that summary judgment be entered in favor of Nichols, Abbott, and Jarvis.
The issue before us is whether the Buyer s Acknowledgement and Agreement is contrary to public policy.
The Buyer’s Acknowledgement and Agreement provides, in relevant part:
“1. I HAVE CAREFULLY INSPECTED THE PROPERTY. SUBJECT TO ANY INSPECTIONS ALLOWED UNDER MY CONTRACT WITH SELLER, (And repairs to be made as therein required), I AGREE TO PURCHASE THE PROPERTY IN ITS PRESENT CONDITION ONLY, WITHOUT WARRANTIES OR GUARANTEES OF ANY KIND BY SELLER OR ANY REALTOR CONCERNING THE CONDITION OR VALUE OF THE PROPERTY.
“2. I AGREE TO VERIFY ANY OF THE ABOVE INFORMATION THAT IS IMPORTANT TO ME BY AN INDEPENDENT INVESTIGATION OF MY OWN. I HAVE BEEN ADVISED TO HAVE THE PROPERTY EXAMINED BY PROFESSIONAL INSPECTORS.
“3. I ACKNOWLEDGE THAT NEITHER SELLER NOR ANY REALTOR INVOLVED IN THIS TRANSACTION IS AN EXPERT AT DETECTING OR REPAIRING PHYSICAL DEFECTS IN THE PROPERTY. I STATE THAT NO IMPORTANT REPRESENTATIONS CONCERNING THE CONDITION OF THE PROPERTY ARE BEING RELIED UPON BY ME EXCEPT AS DISCLOSED ABOVE OR AS FULLY SET FORTH AS FOLLOWS:
The Hamtils signed the document after conferring with an attorney.
This issue involves a question of law; therefore, this court’s scope of review is unlimited. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 283, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
Each of the briefs filed cites to the recent case of Mahler v. Keenan Real Estate, Inc., 255 Kan. 593, 876 P.2d 609 (1994). Mahler, quoting from Bevins v. Ballard, 655 P.2d 757, 763 (Alaska 1982), states: “ ‘[W]e hold that a purchaser who relies on a material misrepresentation, even though innocently made, has a cause of action against the broker originating or communicating the misrepresentation.’ ”
However, Mahler, quoting Bevins, 655 P.2d at 763, also states:
“ ‘Brokers, in turn, can protect themselves from liability by investigating the owner’s statements, or by disclaiming knowledge, by requiring the seller to sign at the time of listing a statement setting forth representations which will be made, certifying that they are true and providing for indemnification if they are not. See Goldman v. Hart, 134 Ga. App. 422, 214 S.E.2d 670 (1975).’ ” 255 Kan. at 605.
The Hamtils cite several other cases from other jurisdictions to support their claims. None of the cases cited, however, involve a disclaimer like the one here and, while interesting, are of little value.
Nichols, Abbott, and Jarvis argue that the agreement here is similar to an “as is” clause, which Kansas has approved in the past.
In Boegel v. Colorado Nat’l Bank of Denver, 18 Kan. App. 2d 546, 857 P.2d 1362, rev. denied 253 Kan. 856 (1993), Boegel appealed the jury’s decision to deny his fraudulent concealment claim in the purchase of a farm. The purchase agreement that Boegel signed contained the following language:
“ ‘BUYER acknowledges purchasing hereunder based on BUYER’S inspection and not upon any express or implied warranty or representation made by SELLER or SELLER’S agents, it being specifically agreed that the Premises and all irrigation equipment thereon, including, but not necessarily limited to engines, pumps, gearheads and center pivot sprinklers being sold “as is where is.” ’ ” 18 Kan. App. 2d at 548.
Before signing the agreement, Boegel drove by the irrigation systems, but he neither tested them nor discussed their life expectancy with anyone. After the deal closed, Boegel learned that sev-
eral of the wells were in poor condition. Boegel then brought an action against the seller alleging that the seller fraudulendy concealed information concerning defects in the irrigation wells.
In finding Boegel’s contentions meritless, the court emphasized that “[t]he contract expressly provided that Boegel agreed to buy the property based upon the results of his own inspection and not based on any express or implied warranty or representation made by the [seller].” 18 Kan. App. 2d at 550. The court also found the seller had “bargained for limited liability, and Boegel contractually assumed a duty to inspect the property.” 18 Kan. App. 2d at 554. The court concluded by recognizing that the seller’s limited liability would be nullified if Boegel’s claim for fraudulent concealment was permitted. 18 Kan. App. 2d at 554.
Boegel stands for the proposition that courts will enforce contractual provisions entered into knowingly and voluntarily.
Applying the reasoning in the cases cited, we conclude that Nichols, Abbott, and Jarvis are entitled to summary judgment and that there is no public policy which outweighs the contractual provisions entered into by the parties.
We arrive at this conclusion after considering:
(1) The Hamtils inspected the property themselves on more than one occasion. What was apparent the day after the sale should have been apparent before they signed any contract or agreement;
(2) the Hamtils apparently chose to rely on their own professional inspectors, which in itself is an expression of not relying on any statement made by a sales agent, if any was made, who was clearly the agent of the seller; and
(3) the Hamtils had the advice of an attorney before signing the Buyer’s Acknowledgement and Agreement.
Kansas follows the “general principle that competent parties may make contracts on their own terms, provided they are neither illegal nor contrary to public policy, and that in the absence of fraud, mistake, or duress a party who has fairly and voluntarily entered into such a contract is bound.” Adams v. John Deere Co., 13 Kan. App. 2d 489, 492, 774 P.2d 355 (1989). The agreement contained clear language allowing the Hamtils to list any representations upon which they were relying and blank spaces for the representations to be listed. Moreover, the record reveals that the Hamtils’ attorney specifically wrote “any ?” on these blank lines while revising the agreement. The Hamtils, however, did not make any notations in these blanks. As a result, the Hamtils agreed in writing that they were not relying on any representations by Nichols, Abbott, or Jarvis. The agreement is unambiguous, and there is no cause to allow the Hamtils to present parol evidence to establish a material fact in dispute.
We further conclude that real estate brokers may protect themselves from negligent misrepresentation actions by disclaiming knowledge of the property’s defects and having a buyer or seller acknowledge such disclaimer. Such protection is not against public policy and, in fact, helps to clarify the law and the role of those involved in real estate matters.
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|
ROYSE, J.:
This appeal arises out of an application filed by the City of Topeka (City), seeking a property tax exemption for Heartland Park Topeka (HPT). The Board of Tax Appeals (BOTA) determined that HPT qualifies for a tax exemption. BOTA concluded part of the property was exempt as of January 12, 1988, and the balance was entitled to an exemption effective in 1991. The parties sought judicial review of BOTA’s decision. The district court affirmed BOTA’s determination that HPT was entitled to a property tax exemption, but the court concluded all property became tax exempt as of January 12, 1988. U.S.D. 450, Shawnee Heights, an intervenor in the BOTA proceeding, appeals from the decision of the district court.
Highly summarized, the pertinent facts are as follows: HPT is a race track and motor sports facility. The principal players in HPT are the City and Lario Enterprises (Lario). Under the terms of a Development and Management Agreement, Lario contracted to acquire title to the real estate for the planned race track and to deed that land to the City. The title transferred to the City was an estate for 23 years. Title reverts to Lario or a related company at the end of the 23-year term. The parties’ arrangements for the operation of HPT after the City’s 23-year term expires are not pertinent to this appeal.
In consideration of its interest in the real estate, the City agreed to issue and did issue $7.5 million in general obligation bonds. The bond proceeds were used to improve land transferred by Lario to the City in 1988.
The Development and Management Agreement also designated Heartland Park Corporation (HPC) as the corporate entity responsible for operation and management of the racing facility. HPC is a subsidiary of Lario. HPC operates HPT on behalf of the City. HPC has established a fee schedule for use of the property. HPC receives as compensation for its services any revenue from operations which exceeds expenses.
The City filed an application for property tax exemption for HPT in 1991. The City sought an exemption for property owned by the City during the City’s period of ownership. After reviewing voluminous documents and testimony from a number of witnesses, BOTA found, the property was exempt from the date it was transferred to the City. BOTA entered a detailed order and an order on rehearing. The findings and conclusions of BOTA most important to this appeal are as follows:
1. HPT property is owned by the City.
2. HPT is used as a race track and motor sports facility. Its single purpose and use is as a recreational facility, which is a recognized governmental or proprietary function.
3. The City issued bonds to finance a portion of the property, and taxes were levied to repay those bonds. Additional taxes may be levied to operate HPT.
4. The City contracted for HPC to operate and manage HPT on behalf of the City.
STANDARD OF REVIEW
K.S.A. 74-2426(c) provides that orders from BOTA are subject to review in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 etseq. The burden of proving invalidity of agency action is on the party asserting invalidity. K.S.A. 77-621(a)(l). K.S.A. 77-621(c) provides that the court may grant relief only when it has made certain determinations, including a determination that the agency erroneously interpreted or applied the law. In re Tax Appeal of Morton Thiokol, Inc., 254 Kan. 23, 26, 864 P.2d 1175 (1993).
The legal principles applicable to questions of taxation and exemption are well settled. Whether particular property is exempt from ad valorem taxation is a question of law if the facts are agreed upon. T-Bone Feeders, Inc. v. Martin, 236 Kan. 641, 645, 693 P.2d 1187 (1985). Taxation is the rule, and exemption from taxation is the exception under the Kansas Constitution and statutes. 236 Kan. at 645. Constitutional and statutory provisions exempting property from taxation are to be strictly construed against the one claiming exemption, and all doubts are to be resolved against the exemption. In re Application of Int'l Bhd. of Boilermakers, 242 Kan. 302, 305, 747 P.2d 781 (1987). Strict construction, however, does not mean unreasonable construction. Trustees of The United Methodist Church v. Cogswell, 205 Kan. 847, Syl. ¶ 2, 473 P.2d 1 (1970).
In addition to the constitutional exemption, the legislature may provide statutory exemptions from property taxation. Tri-County Public Airport Auth. v. Board of Morris County Comm'rs, 245 Kan. 301, 305, 777 P.2d 843 (1989). The statutory exemptions may be broader than the constitutional ones. The legislature is the judge of what exemptions are in the public interest and will be conducive to the public welfare. State ex rel. Tomasic v. City of Kansas City, 237 Kan. 572, 579, 701 P.2d 1314 (1985).
BOTA is a specialized agency that exists to decide issues concerning taxation. Its decisions should be given great credence and deference when it is acting in its area of expertise. Hixon v. Lario Enterprises, Inc., 257 Kan. 377, 378-79, 892 P.2d 507 (1995). The final construction of a statute, however, rests with the courts. Although the courts will give consideration and weight to an administrative agency’s interpretation of a statute, they will not adhere to that interpretation when the statute is clear and the agency’s ruling is incorrect. In re Tax Exemption Application of City of Wichita, 255 Kan. 838, 842, 877 P.2d 437 (1994). See In re Appeal of Topeka SMSA Ltd. Partnership, 260 Kan. 154, 162, 917 P.2d 827 (1996).
On appeal, U.S.D. 450 argues BOTA and the district court erred in determining HPT is entitled to a tax exemption. In addition, U.S.D. 450 argues the district court erred in determining the exemption applied to all property in question as of January 12,1988. These arguments ask this court to determine that BOTA and the district court erroneously interpreted or applied the law.
Article 11, § 1(b)(2) of the Kansas Constitution provides: “All property used exclusively for state, county, [and] municipal . . . purposes .. . shall be exempted from property taxation.” A slightly different exemption is set forth in K.S.A. 79-201a Second, which exempts from property taxes “[a]ll property used exclusively by the state or any municipality or political subdivision of the state.” The second sentence of 79-201a Second provides a three-part test which may be used to prove property satisfies the “used exclusively” requirement for die statutory exemption:
“All property owned ... or operated by the state or any municipality . . . which is used or is to be used for any governmental or proprietary function and for which bonds may be issued or taxes levied to finance the same, shall be considered to be ‘used exclusively by the state, municipality or political subdivision for propose of this section.”
BOTA analyzed the exemption under 79-201a Second by applying this three-part test. BOTA concluded: (1) HPT is owned by the City; (2) the City has opted to operate HPT through an agreement with Lario; (3) HPT is used as a recreational facility, a recognized governmental or proprietary function; and (4) the City issued bonds to finance a portion of the property, taxes were levied to repay those bonds, and additional taxes may be levied.
PROPERTY “OWNED” BY THE CITY
U.S.D. 450 argues BOTA erred by concluding the City satisfied the second sentence of K.S.A. 79-201a Second. U.S.D. 450 contends HPT is not owned or operated by the City and the property is not used for a governmental or proprietary purpose. U.S.D. 450 has not argued that HPT fails the bonds/taxes part of the test.
U.S.D. 450 first claims HPT is not owned by the City, because the City holds only “bare legal title” and lacks sufficient incidents of ownership. U.S.D. 450 further claims that a limited interest in the property, a term of 23 years, is insufficient ownership. U.S.D. 450 cites no direct authority for its assertions that “bare legal title” or a term of years do not amount to ownership under 79-201a Second. Instead, U.S.D. 450 cites Salina Airport Authority v. Board of Tax Appeals, 13 Kan. App. 2d 80, 761 P.2d 1261, rev. denied 244 Kan. 738 (1988), a case which focuses on “use,” not “ownership,” and which does not construe the second sentence of 79-201a Second. See City of Liberal v. Seward County, 247 Kan. 609, 615, 802 P.2d 568 (1990); Tri-County, 245 Kan. at 308-10.
U.S.D. 450 attempts, to support its “bare legal title” argument by quoting from cases which say ownership is not the sole test of exemption. City of Liberal, 247 Kan. at 615; Tri-County, 245 Kan. at 309. Those cases do not hold that legal title is insufficient to comply with the ownership test. They merely indicate an applicant must further satisfy the use test for exemption. See Topeka Cemetery Ass’n v. Schnellbacher, 218 Kan. 39, 42, 542 P.2d 278 (1975). The City’s compliance with the use test is discussed later in this opinion.
In this case BOTA relied on the fact that Lario had transferred title to the City, as well as the fact that the parties intended for the City to retain ownership for 23 years, in concluding that “ownership” had been established. The district court agreed the City had established ownership, noting the record also showed the City retained significant incidents of ownership: The City bears the burden of numerous acquisition costs; bonds issued by the City were used to finance improvements on the property; the City by contract has obligated Lario to pay specified expenses from the revenues it collects; the City may possess and control the property should Lario default; the City and Lario retain decision-making authority commensurate with their respective interests in HPT; and the City obtains an ownership interest in personal property and improvements placed on its property.
The conclusion by BOTA and the district court that HPT passes the ownership test of 79-201a Second is consistent with the construction given by the Supreme Court to a predecessor statute in City of Harper v. Fink, 148 Kan. 278, 80 P.2d 1080 (1938). In that case, the City of Harper sought a tax exemption for property it received under the terms of a will. The City claimed the exemption on the grounds that the property “belonged to” the City, as required by the exemption statutes then in effect. Noting that title to the property vested in the City under the will, the Supreme Court concluded the property was exempt. Even though the will required the City to devote ail income from the use or sale of the property for cemetery purposes, the property belonged to the City of Harper for purposes of the exemption statute. 148 Kan. at 281-82.
U.S.D. 450 relies on In re Application of SBA for Ad Valorem Tax Exemption, 14 Kan. App. 2d 600, 797 P.2d 879 (1990), to support its contention that HPT is not owned by the City. U.S.D. 450’s reliance on that case is misplaced. SBA sought an exemption from taxes accruing during the redemption period on real estate it had purchased at a sheriff s sale. On appeal, this court determined SBA was not entitled to an exemption under 79-201a. This court reasoned that a purchaser at a sheriff s sale receives equitable title to the property. “The legal title remains with the debtor until the sheriff s deed is executed.” 14 Kan. App. 2d at 605. Because SBA did not receive legal title or ownership until the passage of the redemption period, the property was not tax exempt during the redemption period. 14 Kan. App. 2d at 606. Application of SBA does not conclude that a party holding legal title fails the ownership test of 79-20la Second.
The nature of an estate for years was addressed in Kimberlin v. Hicks, 150 Kan. 449, 94 P.2d 335 (1939). The Supreme Court defined an estate for years as “an estate, the duration of which is fixed in units of a year or multiples or divisions thereof.” 150 Kan. at 452. Unless restricted by the terms of the instrument creating the estate, an estate for years may be transferred or devised. The Supreme Court characterized an estate for years as “a valuable property interest.” 150 Kan. at 453.
The Supreme Court’s decision in City of Liberal, 247 Kan. 609, provides some guidance on the question of whether a limited ownership interest may qualify for a tax exemption under 79-201a Second. In that case, the City of Liberal sought a tax exemption for a royalty interest, defined as " ‘the compensation paid to the owner of the mineral interest in land where gas, oil, or other inorganic substance is produced and usually consists of one-eighth or other agreed share of the financial proceeds thereof.’ ” 247 Kan. at 612. Noting that such an interest may be sold or assigned, the court explained that royalty interests are considered personal property and taxed as personal property. The Supreme Court further commented that the statutory exemption refers to “all property.” 247 Kan. at 617. The Supreme Court concluded the royalty interest failed the requirements for a tax exemption, not because it was not owned by the City, but because it was not used for a governmental or proprietary function. 247 Kan. at 618. See also City of Arkansas City v. Board of County Commissioners, 197 Kan. 728, 420 P.2d 1016 (1966) (exemption denied because royalty interests failed the use test).
Finally, the rule of strict construction means that ordinary words are to be given their ordinary meaning. A statute should not be read so as to add or subtract from that which is found therein. In re Tax Appeal of Alex R. Masson, Inc., 21 Kan. App. 2d 863, Syl. ¶ 4, 909 P.2d 673 (1995); State v. Pray, 5 Kan. App. 2d 173, 174, 613 P.2d 400 (1980). The legislature, in judging what exemptions are in the public interest, has not placed qualifications on “ownership,” as used in 79-201a Second. It is not the function of this court to add such qualifications.
For all the foregoing reasons, we conclude BOTA and the district court did not err in concluding HPT is owned by the City.
PROPERTY “OPERATED” BY THE CITY
In addition to its claim that the City does not own HPT, U.S.D. 450 takes the position that the property is not operated by the City for purposes of 79-201a Second. The three-part test included in 79-201a Second applies to property owned or operated by the governmental entity. Because BOTA relied on both alternatives, we will address this argument even though we have already concluded HPT satisfies the ownership test. U.S.D. 450 bases this argument in large part on its assumption that the City holds a “meaningless term of years” in the property, an assumption we have rejected. U.S.D. 450 further contends it is Lario which operates HPT, not the City. This contention overlooks the fact that Lario’s activities at HPT must comply with the terms of its contract with the City.
The basic premise underlying U.S.D. 450’s claim that the City does not operate HPT is that the City may not rely on a contractual relationship to manage the operations of the facility. As noted by BOTA, however, nothing in the statute requires the City to use City employees in order to qualify for the tax exemption. The fact that the City has opted to operate HPT through a management agreement with Lario does not mean the City does not operate HPT. See Bailey v. City of Topeka, 97 Kan. 327, 154 Pac. 1014 (1916) (city’s grants of concessions to individuals, rather than directly providing conveniences to park patrons through its employees, are consistent with the use of property for public purposes).
U.S.D. 450 cites In re Tax Exemption Application of City of Wichita, 255 Kan. 838, in support of its claim that the City does not operate HPT. That opinion does not focus on the “owned or operated” test under 79-201a Second. Instead, the Supreme Court concluded the City of Wichita made no use of the property which it acquired through a forfeiture proceeding:
“The determination of tax exemption under the statute depends to a large extent upon the status of the property in the hands of the owner and whether it actually is being used for a public purpose. The property in question was lying dormant during the pertinent time. It was not being used by anyone and was held for sale with proceeds committed to associated expenses and future governmental purposes. This does not constitute actual use as contemplated under K.S.A. 79-201a.” 255 Kan. at 847.
Application of City of Wichita is distinguishable on its facts .Tt does not require us to reverse B OTA’s conclusion that the City operated HPT.
PROPERTY USED FOR A “GOVERNMENTAL FUNCTION”
U.S.D. 450 further argues HPT is not used for a governmental function. U.S.D. 450 does not dispute that HPT is a recreational facility or that a recreational facility is a governmental function. Instead, U.S.D. 450 seems to take the position that participation by HPC in the operation of HPT, and the fact the HPC receives compensation for its services under the management agreement, preclude satisfaction of the governmental function test.
U.S.D. 450 cites Salina Airport Authority v. Board of Tax Appeals, 13 Kan. App. 2d 80, as support for its argument. That case concluded that certain property owned by the Salina Airport Authority, but leased to private companies, was not exempt from taxation:
“The mere fact that the Authority receives rental income does not constitute ‘use’ within the meaning of K.S.A. 1987 Supp. 79-201a Second. Such a construction would be inconsistent with the clear and unequivocal language of the statute. There is no public function of government being carried out upon the leased properties. To decide otherwise would compel a conclusion that the legislature intended all property owned by the State, its subdivisions, and municipalities leased to private corporations for nongovernmental purposes to be exempt from taxation. This would not only be inconsistent with the statute; it would be unconstitutional.” 13 Kan. App. 2d at 84.
Both BOTA and the district court determined that Salina Airport Authority is distinguishable on its facts. We agree. First, this case does not involve a lease. Instead, the City has hired HPC under a contract to run its recreational facility. As BOTA commented, the mere fact that a private enterprise is connected with a particular municipal property does not change the governmental purpose of the property. Second, Salina Airport Authority involved actual physical use of the property by the lessee for a private purpose, separate from the Airport Authority’s governmental purpose. In this case, however, BOTA found that the “single purpose and use” of HPT is “as a recreational facility.” A governmental function is being carried out on the property. See McKenzie, Survey of Kansas Law: Taxation, 41 Kan. L. Rev. 727, 740-41 (1993). Finally, several of the cases relied on in Salina Airport Authority, 13 Kan. App. 2d 84-85, emphasize that the properties were not available for public use. In contrast, BOTA found that any member of the public may choose to participate in events at HPT.
U.S.D. 450 argues that one provision of the agreement between the City and Lario allows Lario to lease for $1 any portion of the premises it wished for purely private purposes. Without citation to the record, U.S.D. 450 says this has occurred on at least one occasion. Factual statements in a party’s brief are to be keyed to the record; material without such reference is presumed to be without support in the record. Kenyon v. Kansas Power & Light Co., 17 Kan. App. 2d 205, Syl. ¶ 2, 836 P.2d 1193 (1992).
U.S.D. 450’s argument merely shows there is a possibility that sometime in the future a portion of the property might be put to private use which would not meet the requirements for a property exemption under 79-201a Second. This possibility does not justify the conclusion that BOTA erred in determining the property is currently used for a governmental function.
We have carefully considered U.S.D. 450’s arguments and authorities, including decisions from other jurisdictions. We conclude, however, that BOTA and the district court did not err in deciding that HPT qualifies for a tax exemption under the three-part test of the second sentence of 79-201a Second. In light of this conclusion, we need not address the parties’ arguments regarding the application of the first sentence of 79-201a Second or the constitutional exemption in Article 11, § 1(b)(2).
EFFECTIVE DATE OF THE EXEMPTION
BOTA.determined part of the HPT property was exempt as of January 12, 1988, and the balance was entitled to an exemption effective in 1991. In its order on rehearing, BOTA explained the City did not own or operate the property until the property was transferred to the. City. Thus, property transferred to the City in 1988 satisfied the exemption requirements and was tax exempt effective in 1988. Property transferred at later times became tax exempt on those later dates of transfer.
. On review, the district court concluded all HPT property became exempt as of January 12, 1988. The district court stated BOTA needed to focus on use, not ownership, and characterized BOTA’s ruling as creating a “piecemeal type exemption.”
U.S.D. 450 argues the district court erred in modifying the exemption effective dates established, by BOTA. We agree. While ownership is not the sole test for determining whether property is tax exempt, it is certainly one of the tests which BOTA correctly used in applying 79-20la Second to decide whether HPT was exempt. It is also an appropriate consideration in deciding when the exemption takes effect.
BOTA noted the City could not exercise control over, i.e., “operate,” property which had not been transferred to it. The district court disagreed, adopting without explanation Lario’s contention that the City did in fact operate the property prior to transfer. On appeal, Lario contends it was engaged in placing race track improvements on the property. Lario was obligated under the Management Agreement, however, only during its “Term,” which begins under the contract when title to the property vests in the City.
BOTA was not bound by .the parties’ attempts to backdate deeds to some of the property. Any piecemeal quality in the tax exemption is simply a function of the manner in which the parties arranged the project.;
BOTA’s determination of the effective dates for HPT’s tax exemption are supported by the record and consistent with 79-201a Second. The district court erred in modifying those dates.
Affirmed in part and reversed in part. | [
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|
Hill, J.:
Stacey E. Bryant appeals his convictions of attempted aggravated robbery and felony theft, but not his burglary conviction. At his trial, Bryant admitted committing burglary and theft and apologized to the jury for his actions, but now feels he was wrongfully convicted of attempted aggravated robbery and felony theft.
On November 8, 1993, the Wichita police received a phone call reporting a home burglary in progress. The caller identified two male suspects as leaving the scene in a late model blue Cadillac automobile. Two officers responded to the call and pulled over a car matching that description. Bryant, who was sitting in the passenger seat of the Cadillac, jumped out of the car and ran from the officers. One of the officers chased Bryant but lost him. Another officer then continued the chase and pursued Bryant.
While Bryant and the police officer were running down the street, a van slowed so it would not hit them. Bryant ran to the driver s side of the van, opened the door, and appeared to attempt to pull the driver out. The officer could see Bryant pull his body up halfway into the van as if he were trying to crawl onto the driver s lap. Bryant grabbed at the driver’s hand, arm, and chest. The van accelerated with Bryant hanging out the open driver’s door. The van veered and swerved and eventually came to rest sideways in the street. Bryant got out.
The police officer, still pursuing Bryant, saw him walk over to a car that was stopped at a stop sign. Bryant appeared to try to open the door but was unable to do so. Bryant walked away and was eventually placed under arrest by the officer.
The jury convicted Bryant of burglary, theft, and attempted aggravated robbery of the van driver. Bryant was sentenced to 51 months for attempted aggravated robbery, 21 months for burglaiy, and 10 months for felony theft. The burglary and theft sentences are to be served concurrent with each other but consecutive to the attempted aggravated robbery sentence.
On appeal, Bryant argues that there was insufficient evidence to sustain a conviction for attempted aggravated robbery, that the trial court erred when it failed to give the jury the definition of bodily harm, and that the trial court should have instructed the jury on the lesser included offense of misdemeanor theft. After oral argument, the issue of an illegal sentence was brought forward by Bryant. We will deal with the issues in order.
Bryant argues that the evidence was insufficient in two areas. First, he argues that the driver of the van did not suffer sufficient bodily harm to sustain a conviction for attempted aggravated robbery and, second, that he did not touch the driver with unnecessary force.
“If the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational fact-finder could have found the defendant guilty beyond a reasonable doubt.” State v. Timley, 255 Kan. 286, Syl. ¶ 13, 875 P.2d 242 (1994).
In examining the evidence in a light most favorable to the prosecution, we determine that there was sufficient evidence presented that would convince a rational factfinder beyond a reasonable doubt that Bryant was guilty of attempted aggravated robbery. Robbery, pursuant to K.S.A. 1993 Supp. 21-3426, is the taking of property from the victim by force or threat of bodily harm. Aggravated robbery is robbery committed by a robber who is armed with a dangerous weapon or inflicts bodily harm upon his victim during the course of the robbery. K.S.A. 1993 Supp. 21-3427. Bryant was not armed with a deadly weapon in this case, so we must concentrate upon the question of bodily harm.
No cases dealing with the aggravated robbery statute have defined bodily harm. Bodily harm definitions used in aggravated kidnapping cases are appropriate for use here. A “note on use” in the PIK instruction for aggravated kidnapping, PIK Grim. 3d 56.25, states:
“ ‘Bodily harm’ includes any act of physical violence even though no permanent injury results. Trivial or insignificant bruises or impressions resulting from the act itself should not be considered as ‘bodily harm.’ Unnecessary acts of violence upon the victim, and those occurring after the initial abduction would constitute ‘bodily harm.’ State v. Sanders, 225 Kan. 156, 587 P.2d 906 (1978).”
In State v. Taylor, 217 Kan. 706, 714, 538 P.2d 1375 (1975), the court noted that the legislature created the difference between aggravated kidnapping and kidnapping in order to deter unnecessary acts of violence upon victims. The court recognized that some trivial injuries were likely to result from the very act of kidnapping. They ruled, however, that “insignificant bruises or impressions resulting from the act itself are not what the legislature had in mind when it made ‘bodily harm’ the factor which subjects one kidnapper to a more severe penalty than another.” 217 Kan. at 714. Later, the court in State v. Mason, 250 Kan. 393, 827 P.2d 748 (1992), refused to narrow the definition of bodily harm by including the term “substantial.” In that case, the trial court defined bodily harm as “ ‘any touching of the victim against the victim’s will, with physical force, in an intentional, hostile and aggravated manner, or the projecting of such force against the victim by the kidnapper.’ ” (Emphasis added.) 250 Kan. at 396. The defendant in Mason wanted to narrow the definition of bodily harm to exclude trivial injuries and include the term “substantial,” but the court refused. 250 Kan. at 397-98.
Similar principles should apply to aggravated robbery and robbery cases. Some trivial injuries can happen in the course of a robbery, but bodily harm fhat leaves permanent scarring or unnecessary acts of violence committed upon a victim transforms the robbery into aggravated robbery.
Bryant, argues that the driver’s injuries were insignificant and did not result from any intentional violence that he applied against the driver. The evidence revealed that Bryant tried to pull the driver from the van. As a result of this intentional, hostile act, the driver’s knuckles were cut. The cut was bleeding and required attention by emergency medical personnel. There is some permanent scarring on the driver’s hands.
The injuries in this case are similar to the injuries suffered in Mason. In that instance, an 89-year-old victim was dragged upon the floor of her home, the examining physician described the vie tim’s injuries as a number of bruises and scratches on her arms, a scratch on her ankle, an abrasion on her lower mid-abdomen, and tender ribs. The Mason court concluded that the evidence was clearly sufficient to prove the victim suffered bodily injury. 250 Kan. at 398.
In this case, although the driver did not know exactly how he sustained his injuries, he did acknowledge that his knuckles were cut and that the injuries did occur during the attempted carjacking. He did have a “knot” near the cut and has a scar. We find that the evidence of such injuries constitutes sufficient bodily harm in order to sustain a conviction of attempted aggravated robbery.
Moreover, it is clear that Bryant’s actions were particularly violent, as contemplated in State v. Taylor, 217 Kan. at 714, where the defendant threw a 7-year-old child who could not swim into a river. In that case, the court ruled that the violent behavior of throwing the child into the river constituted bodily harm. Bryant’s actions of jerking open the door to the van, attempting to pull the driver out of his vehicle while it was moving, and forcing the driver to defend himself and his property clearly shows intent to rob the victim and an application of force that is hostile and violent. His actions were aggravated and particularly threatening.
Turning next to the issue of whether the trial court should have instructed the jury on the definition of bodily harm, the standard we must deal with is whether it was clearly erroneous for the trial court to omit such an instruction.
“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 for the objection, unless the instruction is clearly erroneous. K.S.A. 22-3414(3). An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there is a real possibility the jury would have returned a different verdict. [Citation omitted.]” State v. Whitaker, 255 Kan. 118, 125, 872 P.2d 278 (1994).
Bryant did not ask for a definition of bodily harm instruction to be given to the jury. The trial court did, however, instruct the jury on the law of attempted aggravated robbery and the lesser included offense of attempted robbery. The difference between these two instructions is that the attempted robbery instruction omits the element of the aggravated robbery instruction which states “that the defendant inflicted bodily harm on any person in the course of such conduct.”
We cannot reach a firm conviction that the jury might have come to a different verdict had a-definition of bodily barm been given in this case. Clearly, the options available to the jury were to determine the difference between guilty of attempted aggravated robbery, guilty of attempted robbery, or not guilty. The difference between tbe two crimes is the presence or absence of bodily harm. As instructed, and from the evidence, it is clear that the jury had to consider Bryant’s argument that he had not inflicted any bodily harm on his victim but rejected that argument when it chose between attempted aggravated robbery and attempted robbery. Had the jury been convinced that there was no bodily harm, it could have found Bryant guilty of attempted robbery or, if it had been convinced that he was merely asking for a ride, it could have found him not guilty. We cannot find that it was clearly erroneous for the trial court to fail to give a definition of bodily harm.
The final issue is whether the court erred when it did not give an instruction on the lesser included crime of misdemeanor theft. We conclude that the court did not need to give a misdemeanor theft instruction. The victim of the theft in this case testified that the value of the property stolen from her home was greater than $500. One coat was valued at $400 and another was valued at $30. Assorted jewelry valued at $40 was taken, as well as a television set with a value of $175. No other testimony about value was presented by either Bryant or the State.
The law concerning lesser included offense instructions states:
“The defendant has a right.to have the court instruct the jury on all lesser included offenses established by substantial evidence, however weak, unsatisfactory, or inconclusive the evidence may appear to the court. Even the unsupported testimony of the defendant alone, if tending to establish such lesser offense, is sufficient to require the court to so instruct. However, the evidence must be substantial and there must be evidence which, when viewed in a light most favorable to the defendant, would justify a jury finding in accordance with the defendant’s theory.” State v. Harmon, 254 Kan. 87, Syl. ¶ 1, 865 P.2d 1011 (1993).
The courts in Kansas have held that the value of property is determined as the fair market value of the items taken at the time of the theft. State v. Owens, 248 Kan. 273, 285, 807 P.2d 101 (1991). Furthermore, an owner is qualified to express an opinion as to the value of the items taken. State v. Hinckley, 13 Kan. App. 2d 417, 419, 777 P.2d 857 (1989). Even-though misdemeanor theft is clearly a lesser included offense of felony theft, it is not necessary to give the instruction where the value of the stolen goods is established to be over the felony limit and where there is no evidence of a value of less than the felony limit. See State v. Robinson, 4 Kan. App. 2d 428, 429, 608 P.2d 1014 (1980). We find no evidence in the record which would compel the trial court to instruct on the lesser included offense of misdemeanor theft in this case.
We affirm the convictions of felony theft, burglary, and attempted aggravated robbery.
The sentencing court used criminal history category “E” in passing sentence upon Bryant’s burglary and theft convictions. The court did so in error. Both parties agree that the trial court should have used criminal history category “I” in passing sentence for the burglary and theft convictions. The statute in effect at the time of the commission of these offenses defined a “conviction event” as one or more felony convictions occurring on the same day within a single court. See K.S.A. 1993 Supp. 21-4703(c). Bryant’s convictions in case No. 93 CR 1975 and case No. 94 CR 128 constitute one conviction event. The trial court in this case should impose a base sentence for the attempted aggravated robbery conviction using a criminal history of category “E” but, pursuant to K.S.A. 1993 Supp. 21-4720(b)(5), use criminal history category “I” in determining Bryant’s sentence for burglary and theft.
Convictions affirmed, sentences vacated, and case remanded for resentencing. | [
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|
Boyer, J.:
State Farm Mutual Automobile Insurance Company (State Farm) contends that the trial court erred in dividing liability for damages sustained in a automobile accident equally between State Farm and Budget Rent-a-Car (Budget). We agree.
While driving a car rented from Budget, Yana Winney struck a car driven by Melissa Wood. Wood was insured by State Farm. State Farm paid Wood for her damages and then State Farm was awarded its claim for those damages against Winney. State Farm also insured Winney. State Farm then initiated a garnishment action against Budget in an attempt to recover any insurance proceeds Winney would be entitled to under Budget’s insurance. Budget denied coverage.
Both State Farm and Budget filed motions for summary judgment. The basic facts of the case are not in dispute. The trial court found that the provisions of the rental agreement between Budget and Winney denied coverage from Budget’s insurance and that Winney’s State Farm policy also denied coverage. The trial court found these provisions to be “mutually repugnant” and ruled that the damages must be equally divided between State Farm and Budget. State Farm filed a timely notice of appeal.
Winney’s State Farm policy stated, in relevant part:
“If a temporary substitute car, a non-owned car or a trailer designed for use with a private passenger car or utility vehicle has other vehicle liability coverage on it, then this coverage is excess. THIS COVERAGE SHALL NOT APPLY:
“a. IF THE VEHICLE IS OWNED BY ANY PERSON OR ORGANIZATION IN A CAR BUSINESS; AND
“b. IF THE INSURED OR THE OWNER HAS OTHER LIABILITY COVERAGE WHICH APPLIES IN WHOLE OR IN PARTAS PRIMARY, EXCESS OR CONTINGENT COVERAGE.” (Emphasis in bold.)
Budget’s insurance policy, issued by Associated International Insurance Company, stated, in pertinent part:
“The following are ‘insureds’:
a. You for any covered ‘auto’.
b. Anyone else while using with your permission a covered ‘auto’ you own, hire or borrow.”
Further, the policy provided: “For any covered ‘auto’ you own this Coverage Form provides primary insurance.” (Emphasis added.)
Budget’s rental agreement stated:
“RENTER’S PROTECTION. Budget does not provide Renter with liability insurance coverage. However, subject to all the terms and conditions of this Agreement, Budget does provide Renter with Renter Protection, if Renter is found to be at fault in an accident involving the Vehicle. Renter Protection is not insurance.
“(b) Renter understands and acknowledges that Renter Protectionis not insurance and is only available when Renter has no primary, excess or contingent individual insurance coverage available to Renter.” (Emphasis added.)
Applying the rule adopted in Western Cas. & Surety Co. v. Universal Underwriters Ins. Co., 232 Kan. 606, 657 P.2d 576 (1983), the trial court stated:
“Citing Overbaugh v. Strang, 254 Kan. 605, 867 P.2d 1016, (1994), the Court finds and holds that the ‘other liability coverage’ clause in plaintiff s policy of insurance and the clause in Budget’s rental contract stating that rental protection benefits are only available if the renter has no other insurance coverage, are mutually repugnant, pursuant to Western Cas. & Surety Co. v. Universal Underwriters Ins. Co., 232 Kan. 606, 657 P.2d 576 (1983).”
Western Casualty involved a school employee who was driving a rental van at the time of the accident. The other driver suffered personal injuries and property damage to her car. The rental company, as the owner of the van, had liability insurance to cover the accident, and under the provisions of that policy, the employee was an “insured.” Additionally, the school district had a policy listing the employee as a named insured. Both policies covered the loss and both policies contained excess coverage clauses. 232 Kan. at 607. Our Supreme Court determined that the conflicting “other insurance” excess provisions in those policies were mutually repugnant and ordered the loss prorated between the two insurance carriers. 232 Kan. at 611.
State Farm argues that Budget should be liable in full for the damage caused by the rental car because the insurance policy carried by Budget specifically states it provides primary coverage, while the State Farm policy held by Winney only provides excess coverage for accidents occurring in non-owned cars.
The insurance policies and the rental agreement are all contracts, which are subject to unlimited review by this court. See Mark Twain Kansas City Bank v. Cates, 248 Kan. 700, 704, 810 P.2d 1154 (1991).
This court concludes that the language of the two insurance contracts is in harmony. Therefore, the “equal share” rule of Western Casualty is inapplicable. It is undisputed that Winney was a permissive driver of a vehicle owned by Budget at the time of the accident. State Farm correctly points out that although K.S.A. 40-3107(h) allows an owner to exclude from coverage any vehicle while it is being rented, Budget’s policy has no such provision. We conclude, therefore, that Budget’s policy of insurance is primary.
We also disagree with the trial court’s conclusion that the self-insured retention language of Budget’s policy was material to the issue at hand. This endorsement made Budget responsible to pay the first $250,000 on any loss. We agree with State Farm’s argument that the self-insured retention endorsement was, in essence, a “deductible.” The endorsement provided as follows:
“In consideration of the payment of the premium charged, it is understood and agreed that the insured has agreed to assume a self insured retention. The coverages, exclusions, limits of insurance, conditions and definitions of the coverage parts and endorsements attached to and forming a part of this policy apply equally to the self insured retention.” (Emphasis added.)
The self-insured retention endorsement held by Budget specifically incorporated all of the terms and conditions of the policy of insurance. Consequently, Budget agreed to furnish primary insurance for losses up to the first $250,000. Since the loss in this case was for less than $250,000, Budget was responsible to cover the full loss.
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|
Marquardt, J.:
Tony M. Bradford appeals from the order of the Workers Compensation Appeals Board (Board), arguing that (1) the Board erred in concluding that he suffered a work-related injuiy to his right wrist only; (2) the administrative law judge (ALJ) lacked the authority to issue an award; and (3) the prior decisions of this court defining the date of injuiy in carpal tunnel cases require that his injuiy be designated as a permanent partial general bodily disability.
Bradford worked as a mechanic for Boeing Military Airplanes (Boeing) from 1987 until September 1993. Bradford’s job involved lifting, drilling, and riveting.
In July 1992, Bradford began to experience numbness, tingling, and a loss of grip strength in his right arm. About 2 to 3 weeks later, Bradford experienced similar symptoms in his left arm.
On August 10, 1992, Bradford went to Boeing’s medical office, received pain medication, and was sent back to his job. Even though Bradford was having problems with both hands at that time, his right hand was more problematic.
On August 25, 1992, Bradford saw Dr. Harry Morris, an orthopedic surgeon. Bradford testified that he told Dr. Morris he was having problems with both of his arms and wrists; however, Dr. Morris’ treatment notes reflect that Bradford only complained about his right arm, wrist, and hand. Dr. Morris’ notes also indicate that Bradford kept working by using his left hand.
On September 7, 1992, Dr. Morris saw Bradford again and at that time, Bradford did not complain of problems with his left hand or wrist. Dr. Morris testified that on October 7, 1992, Bradford complained for the first time that his left wrist was bothering him.
After Bradford’s fourth visit; Dr. Morris recommended that'he see another surgeon as Bradford wanted surgery.
Bradford first saw Dr. James Gluck, an orthopedic surgeon, on December 8,1992. Dr. Gluck treated Bradford by giving him cortisone injections. Dr. Gluck then performed, carpal tunnel release surgeiy on Bradford’s right arm on January 15, 1993, and his left arm on January 29, 1993.
In June 1993, following the surgeries and work hardening therapy, Bradford was released to go back to work on light duty; however, Bradford returned to his riveting and drilling job. After a few weeks, Bradford’s symptoms recurred and he was reassigned to sorting blueprints. In September 1993, Bradford was' laid off by Boeing.
Bradford had filed a workers compensation claim against Boeing and its insurance carrier. Bradford received an award in which the ALJ found that Bradford “[had] a 10 percent impairment to his right arm as a result of his accidental injuries suffered while working for the respondent.” Similarly, the ALJ found fhát Bradford “[had] not sustained his burden to prove that any problems that he had with his left arm [were] relatéd to injuries he received at work.” The Board affirmed the ALJ’s award.
Bradford argues that he suffered from bilateral carpal tunnel syndrome and not just an injury to his right wrist.
“Our scope of review in a workers compensation cáse requires that we view the evidence in a light most favorable to the prevailing party and that we determine whether the trial court’s findings are supported by substantial competent evidence.” Grizzle v. Gott Corp., 19 Kan. App. 2d 392, 393, 872 P.2d 303 (1993).
The ALJ and the Board found that Bradford failed to sustain his burden of proof that he injured his left arm and/or hand as a result of working for Boeing.
This court will affirm the Board’s ruling absent proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice. Rodriguez v. Henkle Drilling & Supply Co., 16 Kan. App. 2d 728, 730, 828 P.2d 1335, rev. denied 251 Kan. 939 (1992); see Guerrero v. Dold Foods, Inc., 22 Kan. App. 2d 53, 58, 913 P.2d 612 (1995).
If only one hand is stricken with carpal tunnel syndrome, the claimant is compensated for a scheduled injury pursuant to K.S.A. 44-510d. However, if both hands are stricken with carpal tunnel syndrome, the claimant is compensated for a permanent partial general bodily disability pursuant to K.S.A. 44-510e. Berry v. Boeing Military Airplanes, 20 Kan. App. 2d 220, 227, 885 P.2d 1261 (1994).
There is conflicting evidence in the record as to whether the injury to Bradford’s left arm was work related. Although Dr. Morris’ testimony was contradictory, his treatment records indicate that Bradford first complained of symptoms in his left wrist 6 weeks after he was taken off work. When presented with these facts, Dr. Gluck testified that it was his personal opinion that the injury to Bradford’s left hand was probably not work related.
“ ‘The existence, nature and extent of the disability of an injured workman is a question of fact,’ ’ Armstrong v. City of Wichita, 21 Kan. App. 2d 750, 756, 907 P.2d 923 (1995), rev. denied 259 Kan. 927 (1996) (quoting Chinn v. Gay & Taylor, Inc., 219 Kan. 196, Syl. ¶ 3, 547 P.2d 751 [1976]). This court does not reweigh the evidence or evaluate the credibility of witnesses. See Locks v. Boeing Co., 19 Kan. App. 2d 17, 19, 864 P.2d 738, rev. denied 253 Kan. 859 (1993).
The Board’s decision that Bradford suffered a work-related injury to his right extremity only is supported by substantial competent evidence.
Bradford argues that the ALJ lacked authority to issue an award because he had filed a letter requesting that the Director of Workers Compensation decide or reassign the case pursuant to K.S.A. 44-523.
The issue of whether an ALJ had jurisdiction to enter an award is a question of law. A question of law is subject to de novo review. See Wain v. Clarkson Constr. Co., 18 Kan. App. 2d 729, 731, 861 P.2d 1355 (1993).
The Kansas Workers Compensation Fund (Fund) argues that this issue was not presented to the Board and may not be asserted for the first time on appeal to this court. Bradford’s notice of appeal to the Board challenged whether the ALJ had jurisdiction to enter the award and his brief to the Board recounts the facts relevant to the jurisdictional argument. Therefore, this argument is not raised for the first time on appeal to this court.
At the regular hearing, the ALJ set terminal dates of August 20, 1994, for Bradford, and September 20, 1994, for Boeing and the Fund. See K.S.A. 44-523(b). Bradford filed his submission letter on October 11, 1994, Boeing filed its submission letter on January 5, 1995, and the Fund filed its submission letter on January 23,
1995. On January 20, 1995, Bradford made a written request for a decision to be made by either the Director or an associate director pursuant to “statutory authorization.” See K.S.A. 44-523(c). Bradford’s letter stated that the ALJ had not yet issued an award in the case “although it was submitted for a decision over three months ago.”
Bradford relies on the mandatory language of K.S.A. 44-523(c):
“When all parties have submitted the case to an administrative law judge for an award, the administrative law judge shall issue an award within 30 days. When the award is not entered in 30 days, any party to the action may notify the director that an award is not entered and the director shall assign the matter to an assistant director or to a special administrative law judge who shall enter an award forthwith based on the evidence in the record, or the director, on the director’s own motion, may remove the case from the administrative law judge who has not entered an award within 30 days following submission by the party and assign it to an assistant director or to a special administrative law judge for immediate decision based on the evidence in the record.” (Emphasis added.)
Bradford essentially argues that his letter requesting the Director to decide or reassign the case pursuant to K.S.A. 44-523 divested the ALJ of jurisdiction to decide the case. Bradford cites no case law that treats K.S.A. 44-523(c) as such a jurisdictional rule.
Bradford ignores that the Director is required to reassign the case if the ALJ has not entered an award within 30 days after “all parties have submitted the case.” K.S.A. 44-523(c). Here, the submission letters of Boeing and the Fund had not been on file over 30 days when Bradford made his request. However, the submission letters were filed past the terminal date set by the ALJ and neither Boeing nor the Fund had requested an extension under K.S.A. 44-523(b). See Bushey v. Plastic Fabricating Co., 213 Kan. 121, 125- 26, 515 P.2d 735 (1973) (noting that continuances may be granted so that parties may be heard). The lateness of these ietters, however, does not alter the language of K.S.A. 44-523(c) that all parties must have submitted the case to the ALJ before the 30-day period begins.
It is worth noting that Bradford’s submission letter was also late and no request for an extension appears in the record.
The ALJ is not bound by technical rules of procedure. K.S.A. 44-523(a); Armstrong, 21 Kan. App. 2d at 758; see also Bahr v. Iowa Beef Processors, Inc., 8 Kan. App. 2d 627, 634, 663 P.2d 1144, rev. denied 233 Kan. 1091 (1983) (holding that lack of notice regarding the classification of the disability did not prejudice the respondent). Bradford does not demonstrate that the allowance of additional time for Boeing and the Fund to file their submission letters prejudiced him or resulted in an unfair decision.
Additionally, one of the purposes behind K.S.A. 44-523(c) is to expedite the processing of claims by making the Director aware of submitted and ready cases that have not been decided by the designated ALJ. See Boeing Military Airplane Co. v. Enloe, 13 Kan. App. 2d 128, 131, 764 P.2d 462 (1988), rev. denied 244 Kan. 736 (1989) (noting that the Workers Compensation Act should be construed to allow the speedy adjustment of claims). Using K.S.A. 44-523(c) to invalidate an award once it has been entered would be contrary to the administrative economy that the statute is designed to facilitate.
Although we have not found any case law considering the current version of the statute, our Supreme Court has addressed a similar issue involving an earlier version of the statute. In Davis v. Haren & Laughlin Construction Co., 184 Kan. 820, 822, 339 P.2d 41 (1959), our Supreme Court ruled that while G.S. 1949, 44-523 provided
“that an award shall be made within thirty days from the time the matter is submitted, this court held in Ketchell v. Wilson & Co., 138 Kan. 97, 99, 23 P.2d 488 [1933], that although the statute is designed to secure prompt action, it does not impose a time limitation upon the commissioner’s jurisdiction to make an award.”
The Board clearly rejected the notion that the filing of a request under K.S.A. 44-523(c) for the matter to be reassigned would op erate to deprive the ALJ of jurisdiction. We agree. The ALJ did not lose jurisdiction to make this award.
Bradford argues that because the last day he worked for Boeing as a sheet metal mechanic was after he had undergone surgery on both his wrists and suffered a recurrence of symptoms in both arms, the law requires that his injury be treated as a general bodily disability rather than a scheduled injury.
Bradford cites Berry, 20 Kan. App. 2d 220, Syl. ¶ 3, where this court held:
“The date of accident or date of occurrence in a workers compensation action involving carpal tunnel syndrome is the last day on which a claimant performs services for his or her employer and is required to stop working as a direct result of the claimant’s pain and disability resulting from carpal tunnel syndrome.”
In Condon o. Boeing Co., 21 Kan. App. 2d 580, 587, 903 P.2d 775 (1995), however, this court noted that “when a worker suffering from work injuries caused by micro-traumas is laid off from work in a general layoff, and not because of a medical condition, the date of injury is not always the last day the worker worked.” ■
Under Berry and Condon, the date of injury was not necessarily the last day worked. Here, the parties stipulated that the date of accidental injury was July 15, 1992.
Bradford worked until September 1993, when he was laid off due to a general layoff, not because of a medical condition. Bradford did not stop working as a “direct result of [his] pain and disability resulting from carpal tunnel syndrome.” Berry, 20 Kan. App. 2d 220, Syl. ¶ 3. For these reasons, Bradford’s argument that his injury should be treated as a general bodily disability lacks merit.
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Brazil, C.J.:
In this habeas corpus action, David R. McKune, the warden of Lansing Correctional Facility (LCF), appeals the district court order that he restore to Lafe D. Gilmore all good time credits withheld based upon Gilmore’s refusal to participate in various assigned rehabilitative programs. We reverse, finding that the district court erred as a matter of law in its interpretation of pertinent regulations promulgated by the Secretary of Corrections.
The parties agree to the essential facts. Gilmore first agreed to complete mental health and sex offender programs as a contingency of his parole release, then later filed a formal refusal to participate in the LCF Sex Offender Treatment Program. Because of his refusal to enter into these programs, LCF officials decided not to award Gilmore any good time credits during the review periods coinciding with his refusal. After exhausting his administrative remedies, Gilmore filed a petition for writ of habeas corpus in the district court. The district court found that the provision relied upon by prison officials, K.A.R. 44-6-124(g)(6), was in direct conflict with K.A.R. 44-5-105(c)(l) and ordered McKune to restore Gilmore’s good time credits to the extent they were withheld solely because of his refusal to participate in the programs.
At issue on appeal is whether withholding good time credits under K.A.R. 44-6-124(g) (6) constitutes a penalty under K.A.R. 44-5-105(c)(l), thus making the two regulations irreconcilable.
K.A.R. 44-5-105(c)(l), part of the regulatory section addressing inmate program plans, provides:
“Any inmate may elect not to participate in a formal program plan. In such an event, that inmate shall not be prohibited from participating in any programs as are available, but the inmate shall first obtain the recommendation and approval of the unit team. The unit team may recommend the inmate for parole eligibility based on the inmate’s rehabilitation progress accomplished by the inmate’s own initiative. The inmate shall not be penalized for refusal to participate in a formal program plan. The inmate shall nevertheless be subject to all the regulations of the secretary and the orders of the principal administrator, and shall be required to participate in any work assignments which are made by the unit team.” (Emphasis added.)
K.A.R. 44-6-124(g)(6) falls under the section which specifically addresses the award of good time credits and provides:
“A pattern of refusal by an inmate to constructively work or participate in assigned programs shall result in the withholding of 100% of the good time credits for that program classification review period, unless the inmate is determined by the facility health authority to be physically or mentally incapable of working or participating in a particular program or detail.” (Emphasis added.)
In resolving any conflicts between these regulations, this court gives deference to the Department of Corrections’ interpretation of its own regulations. Also, a common rule of construction normally applied to statutory interpretation is useful here as well: “In order to ascertain . . . intent, courts are not permitted to consider only a certain isolated part or parts of an act, but are required to consider and construe together all parts thereof in pari materia.’ ” Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992) (quoting Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, Syl. ¶ 2, 544 P.2d 791 [1975]).
As relevant here, the definition section within the regulations provides: “ Award of good time credits’ means the act of the unit team, as approved by the program management committee and the warden or designee, granting all or part of the allocation of credits available for the time period under review,” K.A.R. 44-6-101(d), and “ ‘[forfeiture of good time credits’ means the removal of the credits and consequent reinstatement of a term of actual imprisonment by the disciplinary board pursuant to K.A.R. article 44-12 and K.A.R. article 44-13 as published in the inmate rule book.” K.A.R. 44-6-101(e). The withholding of good time credits is not formally defined in the regulations. As will be shown, however, when the Secretary uses the term “withholding” in the regulations, the Secretary effectively defines the term as the act of not awarding good time credits pursuant to K.A.R. 44-6-101(d).
A review of the regulations as a whole reveals a distinction between the withholding and forfeiture of good time credits. The regulations provide that the forfeiture of good time credits constitutes a penalty imposed in the course of formal disciplinary action against an inmate. In contrast, the withholding of good time credits is not considered a penalty under the regulations and does not involve formal disciplinary action.
As pointed out above, forfeiture of good time credits is expressly defined in conjunction with formal disciplinary action against an inmate. K.A.R. 44-6-101(e). Consistent with the definition, K.A.R. 44-6-124(h) provides: “Good time credits which are forfeited as a result of a penalty imposed for a disciplinary offense shall not be restored to an inmate.” (Emphasis added.) Likewise, the provisions in the regulations which classify disciplinary offenses and penalties provide loss of good time credits as a potential penalty for class I and II offenses. See K.A.R. 44-12-1301(3)(b)(2) and -1302(3)(b)(2). On the contrary, K.A.R. 44-6-124(g)(4) mandates the withholding of good time credits for a pattern of refusal to constructively work or participate in assigned programs, does not speak of withholding good time credits in terms of a formal disciplinary action, and does not classify withholding good time credits in terms of a penalty.
Applying diese principles to K.A.R. 44-5-105(c)(l), we find that, in providing that an inmate “shall- not be penalized” for refusing to participate in a formal program plan, die Secretary intended that such a refusal shall not lead to formal disciplinary action against the inmate. Therefore, when an inmate’s good time credits are withheld for refusing to participate in a formal program plan pursuant to K.A.R. 44-6-124(g)(6), the inmate is not “penalized” as that term is used in articles 44-5 and 44-6 of the regulations.
Our interpretation of the regulations is consistent with the legislature’s authorizing statute. K.S.A. 1994 Supp. 22-3725(d) provides that good time credits “shall be awarded on an earned basis.” If Gilmore elects not to participate in assigned rehabilitative programs pursuant to K.A.R. 44-5-105(c)(l), then available good time credits shall be withheld pursuant to K.A.R. 44-6-124(g)(6) because those credits will not have been earned. As K.A.R. 44-5-105(c)(1) expressly notes, an inmate who elects not to participate in assigned programs is nevertheless subject to all of the regulations of the Secretary, including K.A.R. 44-6-124(g)(6).
We conclude that “withholding” good time credits under K.A.R. 44-6-124(g)(6) does not constitute a penalty under K.A.R. 44-5-105(c)(1) and that the trial court erred when it found the two regulations irreconcilable and ordered the restoration of Gilmore’s good time credits.
Reversed. | [
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Brazil, J.:
Richard D. Cordry, the defendant in this malicious prosecution action, is an attorney who represented Timothy and Rhonda Zywicki in their medical malpractice action filed against Dr. Phillip L. Knight. That action was eventually dismissed voluntarily by the Zywickis. Dr. Knight then filed this action. The case went to trial, and the jury awarded Dr. Knight $150,000 in unspecified damages. On its own motion, the trial court held that the jury verdict shocked the court’s conscience and was contrary to the evidence. The court ordered a remittitur of $20,000 or, in the alternative, a new trial. Dr. Knight rejected the remittitur, and the court ordered a new trial. Dr. Knight appealed the decision of the trial court to order a new trial. This court dismissed his appeal as premature. (Knight v. Cordry, No. 68,304, unpublished opinion filed September 17, 1993.)
At the close of the evidence in Dr. Knight’s second trial, the court granted Cordry’s motion for directed verdict. Dr. Knight appeals the directed verdict and the order for a new trial. Cordry cross-appeals the court’s admission of expert testimony by Dr. David Kingfisher. We affirm.
Cordry first spoke with the Zywickis in August 1986 about the death of their son Dathan at a Wichita hospital. At the time, Cordry was associated with a Wichita law firm. Cordry consulted with others in the firm and the group decided to take the case.
Cordry collected medical records, interviewed the Zywickis, and consulted medical texts. Cordry also contacted an Army physician identified by the Zywickis as a possible source of information. Cor-dry received a letter from the Army stating that the doctor was not allowed to render opinions in medical malpractice cases.
In June 1987, Cordry sought the opinion of Dr. Marshall Schwartz, a pediatric surgeon he had consulted on prior cases. Dr. Schwartz reviewed Dathan’s medical records and concluded that Dr. Knight did not deviate from standard medical practice.
Cordry met with the Zywickis and explained the negative report. The Zywickis indicated that they wanted to pursue the case and asked Cordry to try to get another opinion. In August 1987, Cordry contacted Dr. Steven E. Lemer and Associates and requested that the firm locate an expert to evaluate the Zywicki claim.
The firm procured for Cordry the testimony of Dr. Gary Young, an emergency physician. Dr. Young reported to Cordry in November 1987 that Dathan received “substandard” care. Cordry filed suit against Dr. Knight, the Wichita hospital, and the United States of America in May 1988, 7 days prior to the expiration of the statute of limitations.
Discovery ensued. Cordry deposed a number of doctors and nurses involved in Dr. Knight’s care of Dathan, none of whom testified negatively about Dr. Knight’s care. Dr. Knight obtained a number of expert opinions stating that he did not breach the duty of care. Trial was set for January 1990. Cordry filed a motion for continuance, alleging that he had a conflict with another trial in federal court. Cordry testified that by that time the Zywickis had left the country. The action was dismissed without prejudice.
Cordry contacted the Zywickis by letter in June 1990. The letter stated that Cordry understood that they did not wish to refile the lawsuit. Cordry stated in the letter that he recommended against refiling the lawsuit. Cordry did not refile the lawsuit.
Dr. Knight filed suit against Cordry, Lemer and Associates, and Dr. Young for malicious prosecution in January 1991. The court granted Lemer’s and Dr. Young’s motions for summary judgment, and they were dismissed from the case.
Dr. Knight argues that the trial court erred in granting a directed verdict against him at the close of his evidence in the second trial. Dr. Knight and Cordry agree that the court, although it clearly stated in the record and in its journal entry that it was granting a motion for involuntary dismissal, in effect granted a motion for directed verdict.
K.S.A. 60-241(b) states:
“After the plaintiff, in an action tried by the court without a jury, has completed the presentation of the plaintiff’s evidence, the defendant . . . may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.” (Emphasis added.)
Under the language of the statute, an involuntary dismissal may only occur in a nonjury trial. The proper designation for a motion on plaintiff’s evidence in a jury trial is a directed verdict, and this court may treat the motion granted by the trial court as such. See Amino Brothers Co. Inc. v. Twin Caney Watershed District, 206 Kan. 68, 73, 476 P.2d 228 (1970).
Plaintiff must present proof of five elements in a malicious prosecution action:
“(1) that defendant initiated, continued, or procured the proceeding of which complaint is made; (2) that defendant in doing so acted without probable cause; (3) that, defendant must have acted with malice; (4) that the proceedings terminated in favor of plaintiff; and (5) that plaintiff sustained damages.” Lindenman v. Umscheid, 255 Kan. 610, 624, 875 P.2d 964 (1994).
The trial court noted these elements in its decision on the directed verdict motion. The court stated that it considered the evidence and inferences to be drawn from it in the light most favorable to Dr. Knight. The court found no evidence that Cordry did not have probable cause to file the suit or that he acted with malice. The court held that even assuming there was an inference to be drawn from the evidence that Cordry had no probable cause to file the malpractice suit against Dr. Knight, the special rule regarding attorney liability for malicious prosecution operates to bar jury consideration of the case because there was no evidence that Cordry was not simply aiding his client in obtaining proper adjudication of the malpractice claim.
Dr. Knight argues that the existence of probable cause is a jury question. “[W]here the facts are in dispute the issue of probable cause is for the juiy, but where there is no factual dispute it is a question of law for the court.” Stohr v. Donahue, 215 Kan. 528, 530, 527 P.2d 983 (1974). Dr. Knight fails to point out what facts surrounding the issue of probable cause were in dispute, and a review of the record reveals none. The existence of probable cause is thus a question of law over which this court has unlimited review. Hillman v. Colonial Penn. Ins. Co., 19 Kan. App. 2d 375, 376, 869 P.2d 248, rev. denied 255 Kan. 1001 (1994).
Dr. Knight argues that the court erred in determining that Cor-dry had probable cause to file suit against Dr. Knight. The concept of probable cause is not clear-cut. “ ‘A definition sufficiently exact to meet satisfactorily every possible test would be difficult, if not impossible, to furnish, for the complete legal idea expressed by the term “probable cause” is not to be gathered from a mere definition.’ ” Carnegie v. Gage Furniture, Inc., 217 Kan. 564, 568, 538 P.2d 659 (1975). With this in mind, Kansas courts have adopted the following definition of probable cause in a malicious prosecution action: “Probable cause for instituting a proceeding exists when there is a reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious or prudent man in the belief that the party committed the act of which he is complaining.” Nelson v. Miller, 227 Kan. 271, 277, 607 P.2d 438 (1980).
Dr. Knight argues that Cordry did not have probable cause to file suit because he did not let the Zywickis decide whether to file suit after he received Dr. Young’s report. Dr. Knight cites the following language from Nelson:
“ ‘d. Attorneys. An attorney who initiates a civil proceeding on behalf of his client or one who takes any steps in the proceeding is not liable if he has probable cause for his action . . . and even if he has no probable cause and is convinced that his client’s claim is unfounded, he is still not liable if he acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim. ... An attorney is not required or expected to prejudge his client’s claim, and although he is fully aware that its chances of success are comparatively slight, it is his responsibility to present it to the court for adjudication if his client so insists after he has explained to the client the nature of the chances.
“ Tf, however, the attorney acts without probable cause for belief in the possibility that the claim will succeed, and for an improper purpose, as, for example, to put pressure upon the person proceeded against in order to compel payment of another claim of his own or solely to harass the person proceeded against by bringing a claim known to be invalid, he is subject to the same liability as any other person.’ ” (Emphasis added.) 227 Kan. at 282-83 (quoting Restatement [Second] of Torts § 674, comment d).
Dr. Knight construes the. emphasized language as some sort of component of probable cause. This is an incorrect construction. The Nelson court adopted the Restatement rule that an attorney is not liable for malicious prosecution even without probable cause to file suit unless the attorney acted with an improper purpose. The court in the passage above was not discussing probable cause but improper purpose. The court concluded that there was no improper purpose where an attorney explained the slim chances of recovery with his or her client and the client insisted on filing suit. The court did not state that an attorney does not have probable cause to file suit unless his client reviews the evidence available and gives him or her permission to proceed.
In any event, Dr. Knight points to no evidence which suggests that the Zywickis did not wish to file suit, and a review of the record reveals none. In fact, Cordry testified that he communicated Dr. Schwartz’ negative report to the Zywickis and they asked him to “please pursue the case further” and get another expert opinion.
Probable cause is to be determined considering the circumstances at the time the suit was filed. Stohr v. Donahue, 215 Kan. at 530. Cordry testified that he based his decision to file suit against Dr. Knight on three things: Dr. Young’s opinion, information given to him by the Zywickis, and information contained in Dathan’s medical records.
Dr. Young concluded in his report that:
“Dathan’s vomiting was not treated with a nasogastric tube and he developed aspiration in the lungs which resulted in irreversible respiratory acidosis. Dathan’s severe dehydration was allowed to progress to irreversible shock without benefit of the obvious treatment of IV fluids. In the 5 hours prior to his death when he was under the care of physicians at McConnell and at Wesley Med. Ctr., Dathan should have received enough IV fluid to improve his dehydration from moderately severe to mild. He should not have died from an easily treatable problem, dehydration, and a preventable problem, aspiration.”
Dr. Young also noted that Dr. Knight incorrectly characterized Dathan’s cause of death as “ ‘overwhelming pneumococcal sepsis’ ” and stated that Dathan’s care was “substandard.”
This report, along with information contained in Dathan’s medical records and circumstances described by the Zywickis, forms a basis for a reasonable suspicion that Dr. Knight committed malpractice in his treatment of Dathan. Further, Dathan’s death while under Dr. Knight’s care is a circumstance which could support the belief of a prudent person that malpractice occurred. The trial court did not err in holding that the evidence could not support a finding that Cordry did not have probable cause to file suit.' After the first trial, Dr. Knight appealed the trial court’s order for new trial. Cordry cross-appealed, arguing that the court erred in refusing to determine the existence of probable cause as a matter of law in response to Cordry’s motion for summary judgment, mo tion for directed verdict, and motion for judgment notwithstanding the verdict. This court dismissed Dr. Knight’s appeal as premature. This court also stated that “[t]he other issues on appeal and cross-appeal in .the present case concern errors allegedly made by the trial court and, therefore, at this interlocutory stage, should not be addressed at this time.”
Without plunging deep into an analysis of whether this court should have considered the .probable canse issue as part of the first appeal, it is clear, that.the. trial court’s grant of a directed verdict in the sepond trial is a final order and this court may now address any issue it considered interlocutory in the first appeal. Cordry does not argue in his second cross-appeal that the trial court should have found probable cause as a matter of law in the first trial. However, there are three factors that compel this court’s consideration of the matter: (1) this court’s possibly erroneous decision not to consider Cófdiy’s first cross-appeal, (2) Dr. Knight’s presént arguments regarding the propriety, of an order for new trial or remittitur after the first trial, and (3) the absolute symmetry of the facts regarding probable cause at the first and second trials.
During the first trial, Cordry filed a motion for summary judgment, a motion for directed verdict, and a motion for judgment notwithstanding the verdict, all of which argued that Dr. Knight failed to prove Cordry filed suit without probable cause as a matter of law. The trial court denied the motions. This court did not consider the issue as raised in Cordry’s cross-appeal.
The facts supporting the existence of probable cause in the second trial are identical to those presented in the first trial. Cordry interviewed the Zywickis on several occasions, ordered Dathan’s medical records, consulted a treatise on pediatric medicine, and obtained an expert opinion from Dr. Young. Cordiy sought and obtained a negative report from Dr. Schwartz and received no opinion from the military doctor.
In the first appeal, Dr., Knight argued that Cordiy had no probable cause to file suit because he had not conducted an adequate prefiling investigation. The .court in Nelson stated: “In determining probable cause in a malicious prosecution action brought against an attorney, a jury may properly consider not only those facts dis closed to counsel by the client but also those facts which could have been learned by a diligent effort on the attorney s part.” 227 Kan. at 284.
The court’s statement in Nelson merely dictates that an attorney may not rely on a fact scenario presented by a client as a basis for filing suit. Cordry did not rely solely on the fact scenario presented by the Zywickis for determining the circumstances surrounding Dathan’s death. Cordry obtained the medical records to support the fact scenario described by the Zywickis. Dr. Knight argues that the investigation was inadequate because Cordry did not give Dr. Knight an opportunity to present his version of the facts. Dr. Knight does not allege, however, what fact he could have provided to Cordry that Cordry had not already documented through Dathan’s medical records.
Dr. Knight cites the following language in Nelson to support his claim:
“In determining the purpose of the attorney in filing a civil action, a jury may properly consider as evidence of good faith or absence of malice the fact that the attorney, before filing an action, made a demand upon his client’s adversary and extended to him the opportunity to respond with his version of the facts. This should be the standard procedure unless an immediate filing of an action is required by the imminent running of the statute of limitations or some other good reason.” 227 Kan. at 284-85.
First, the existence of a prefiling demand does not go to the question of probable cause, but to improper purpose. Second, the court stopped short of equating a lack of demand with malice.
Dr. Knight places much emphasis on the fact that he obtained several expert opinions prior to trial indicating that Dr. Knight did not breach the standard of care. He concludes that since Cordiy had knowledge of these negative opinions, Cordry could not have had probable cause to file suit. The court in Nelson stated that “ ‘[a]n attorney is not required or expected to prejudge his client’s claim.’ ” 227 Kan. at 283. There is no support for Dr. Knight’s argument that Cordry should have weighed Dr. Young’s opinion against Dr. Knight’s experts and declined to file suit.
The facts supporting the existence of probable cause are the same in both trials. Under the law as set out in Nelson, the record in both trials reflects that probable cause to file suit existed as a matter of law. The trial court was correct in directing a verdict in the second trial and erred in submitting the question to the jury in the first trial. In light of this conclusion, Dr. Knight’s remaining issues and Cordry’s cross-appeal need not be addressed.
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Royse, J.:
This is a workers compensation case. Kansas Workers Compensation Fund (Fund) appeals from a decision by the Workers Compensation Board (Board) that it lacked jurisdiction to review a decision of the administrative law judge (ALJ) denying the Fund’s motion to dismiss.
Sheryl L. Shain filed a workers compensation claim against her employer, Boeing Military Airplanes (Boeing), alleging she sustained a compensable injury on September 1, 1994. Boeing and Shain settled her claim, and the merits of that claim are not before us.
Before settling with Shain, Boeing impled the Fund. The Fund subsequently filed a motion to be dismissed from the case, arguing there could be no Fund liability under the 1993 amendments to the Workers Compensation Act. The ALJ denied the Fund’s motion.
The Fund sought Board review of the ALJ’s ruling. The Board dismissed the Fund’s request for review, holding the ruling of the ALJ was an unappealable interlocutory order. The Fund appeals.
The first issue is whether the Board correctly interpreted K.S.A. 44-551 and 44-534a in dismissing the Fund’s appeal. Interpretation of a statute is a question of law, subject to unlimited review by this court. Foulk. v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
K.S.A. 1995 Supp. 44-55l(b)(l) states the general rule that all acts by an ALJ are subject to review by the Board upon timely written request. An exception to the general rule is set forth in K.S.A. 1995 Supp. 44-551(b)(2)(A), which provides that if the ALJ enters a preliminary award under 44-534a, the Board shall not conduct a review unless it is alleged that the ALJ exceeded his/her jurisdiction in ruling on the relief requested at the preliminary hearing.
The question then boils down to whether an order denying a motion to dismiss is a preliminary award under 44-534a. If so, the Board correctly declined to rule on the decision. If not, the Board should have addressed the issues raised by the Fund.
K.S.A. 44-534a sets forth the procedures applicable to preliminary awards. K.S.A. 44-534a(a)(l) authorizes an employee or employer to apply for a preliminary hearing “on the issues of the furnishing of medical treatment and the payment of temporary total disability compensation.” K.S.A. 44-534a(a)(2) sets forth the procedures for a preliminary hearing and provides that the ALJ, after making a preliminary finding that the injury to the employee is compensable, may “make a preliminary award of medical compensation and temporary total disability compensation to be in effect pending the conclusion of a full hearing on the claim.” K.S.A. 44-534a(a)(2) also provides that, with the exception of certain spec ified findings, a preliminary award is not appealable or binding and is “subject to a full presentation of the facts.”
Under the plain language of 44-534a, the term “preliminary award” refers to an award arising out of a preliminary hearing which provides for medical benefits and/or temporary total compensation. Compare Lively v. MBPXL Corp., 7 Kan. App. 2d 204, 638 P.2d 999 (1982) (order entered after a preliminary hearing that Fund pay temporary total benefits and medical expenses to claimant was a temporary order not subject to appeal), with Red-gate v. City of Wichita, 17 Kan. App. 2d 253, 836 P.2d 1205 (1992) (order extending benefits entered at hearing on repondent’s motion for determination that it had completed all payments under original settlement was not a preliminary award entered at a preliminary hearing).
The purpose of a preliminary hearing “is to make a summary determination whether the claimant should be receiving temporary total compensation and medical treatment under the worker’s compensation act.” Kansas Workers Compensation Handbook § 15.13 (rev. ed. 1990).
An order concluding the Fund is not entitled as a matter of law to be dismissed from a case does not relate to the award of temporary total benefits or medical treatment and is not a preliminary award under 44-534a.
The purpose for foreclosing appeal from a preliminary award is “to afford the injured employee immediate access to medical and necessary living expenses pending a full hearing.” Clintsman v. St. Joseph Hosp. of Concordia, 11 Kan. App. 2d 199, 201, 717 P.2d 1074, rev. denied 239 Kan. 693 (1986). That purpose would not be served by attempting to stretch the term “preliminary award” to include the order at issue in this case. Moreover, the provision that a “preliminary award” is “subject to a full presentation of facts” has no application to a question of law such as is presented in this case. K.S.A. 44-534a(a)(2).
Waln v. Clarkson Constr. Co., 18 Kan. App. 2d 729, 861 P.2d 1355 (1993), is instructive. In that case, the claimant sought penalties under K.S.A. 44-512a on the grounds that the company had failed to comply with an order that it pay additional temporary total benefits. The ALJ first denied the request for penalties and then on a motion for rehearing entered an order assessing penalties against Clarkson.
The court determined it had jurisdiction to entertain Clarkson’s appeal. The court reasoned that even though 44-534a provides preliminary findings and awards are not appealable, K.S.A. 44-512a provides a procedure for penalties separate and distinct from 44-534a. Because the penalty order was not entered pursuant to 44-534a, review was proper under K.S.A. 44-551(b). Waln, 18 Kan. App. 2d at 731.
K.S.A. 44-551(b) also came into play in resolving a second issue in the Wain case: whether the claimant properly filed a request for rehearing of the first order denying penalties instead of obtaining a review of that order. The court determined there was no statutory provision for motions for rehearing in workers compensation cases. Because the penalty hearings were not preliminary hearings, the court concluded the claimant was required to file a timely request for review of the first order. Because claimant failed to do so, the first order denying penalties became final. Waln, 18 Kan. App. 2d at 732.
For all these reasons, we conclude the order denying the Fund’s motion to dismiss was not a preliminary award under 44-534a. Consequently, the Board erred in concluding it lacked jurisdiction to review the order.
The second issue in this case is whether the Fund may be liable for compensation under K.S.A. 44-567, as amended in 1993. This issue presents a question of law which is subject to unlimited review on appeal. See In re Marriage of Bradley, 258 Kan. 39, 42, 899 P.2d 471 (1995).
K.S.A. 44-567 deals with compensation for injuries sustained by employees with preexisting handicaps; it provides:
“(a) An employer who operates within the provisions of the workers compensation act and who knowingly employs or retains a handicapped employee, as defined in K.S.A. 44-566 and amendments thereto!,] shall be relieved of liability for compensation awarded or be entitled to an apportionment of the costs thereof as follows:
(1) Whenever a handicapped employee is injured or is disabled or dies as a result of an injury which occurs prior to July 1,1994, and the administrative law judge awards compensation therefor and finds the injury, disability or the death resulting therefrom probably or most likely would not have occurred but for the preexisting physical or mental impairment of the handicapped employee, all compensation and benefits payable because of the injury, disability or death shall be paid from the workers compensation fund; and
(2) subject to the other provisions of the workers compensation act, whenever a handicapped employee is injured or is disabled or dies as a result of an injury and the administrative law judge finds the injury probably or most likely would have been sustained or suffered without regard to the employee’s preexisting physical or mental impairment but the resulting disability or death was contributed to by the preexisting impairment, the administrative law judge shall determine in a manner which is equitable and reasonable the amount of disability and proportion of the cost of award which is attributable to the employee’s preexisting physical or mental impairment, and the amount so found shall be paid from the workers compensation fund.” (Emphasis added.)
The language emphasized above was added to the statute in 1993. L. 1993, ch. 286, § 62. The Fund claims these additions limit Fund liability to injuries occurring before July 1,1994, both in “but for” cases under subsection (1) and in “contribution” cases under subsection (2). We agree.
In order to construe one part of a statute, it is permissible to look at other parts of it. “The several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony and giving effect to the entire statute if it is reasonably possible to do so.” Easom v. Farmers Insurance Co., 221 Kan. 415, Syl. ¶ 3, 560 P.2d 117 (1977).
The 1993 act made other changes relevant to the issue presented here. A limitation was added to K.S.A. 44-566a(e): “The workers compensation fund shall be liable for: (1) Payment of awards to handicapped employees in accordance with the provisions of K.S.A. 44-569 and amendments thereto for claims arising prior to July 1, 1994.” L. 1993, ch. 286, § 61. This amendment clearly eliminates Fund liability for claims arising out of injuries to handicapped employees occurring on or after July 1, 1994. This interpretation is also consistent with a limitation added in 1993 to K. S. A. 44-501(c): “The employee shall not be entitled to recover for the aggravation of a preexisting condition, except to the extent that the work-related injury causes increased disability. Any award of compensation shall be reduced by the amount of functional impairment determined to be preexisting.” L. 1993, ch. 286, § 24. See Rebein, The Kansas Response to the Crisis in Workers Compensation: An Overview of the 1993 Amendments to the Kansas Workers Compensation Act, 62 J.K.B.A. 30, 34 (June/July 1993); Shoaf, Workers Compensation, 4 Kansas Annual Survey, 207, 208 (1993).
Because Sham’s injury occurred after July 1,1994, the ALJ erred in denying the Fund’s motion to dismiss.
The Fund has asked that we award it fees in this matter. As no earlier published case addressed the issue of Fund liability for handicapped employees injured after July 1, 1994, we decline to do so.
Reversed. | [
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Toburen, J.;
Patricia M. Stevenson appeals from the district court’s order denying her application for attorney fees and costs incurred in her successful action to enjoin the Kansas Department of Revenue (KDR) from filing a personal tax warrant against her for outstanding liquor excise taxes. The taxes were owed by a liquor establishment owned by Pat, Inc., for which Stevenson served as a corporate officer. The district court found the KDR’s tax warrant procedure to be unconstitutional because it afforded no pre- or post-warrant administrative remedy by which the tax liability determinations could be challenged. The KDR did not appeal that decision. Our analysis of the attorney fee issue is thus predicated on the assumption that the district court’s decision on the constitutional issue was correct.
Stevenson argues she is entitled to attorney fees because the KDR’s proposed course of action, which the district court found to be unconstitutional, was unreasonable as a matter of law and that the district court applied an improper legal standard in denying her request under K.S.A. 79-3268(f). Alternatively, Stevenson concedes that the use of the word “may” in a statute usually imports a discretionary intent and argues that the district court abused its discretion in denying her request for attorney fees.
K.S.A. 79-3268(f), the statute upon which Stevenson makes claim, provides: “Attorney fees and related expenses may be awarded to a taxpayer if it can be proved that an assessment or claim asserted by the department is without a reasonable basis in law or fact.” The statute places the burden of proof on the taxpayer.
“Interpretation of a statute is a question of law. An appellate court’s review of a question of law is unlimited.” Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995); see State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). “When construing a statute, a court should give words in common usage their natural and ordinary meaning.” Bank IV Wichita v. Plein, 250 Kan. 701, 705-06, 830 P.2d 29 (1992). “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.” Martindale v. Penny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992); accord State v. Gonzales, 255 Kan. 243, 249, 847 P.2d 612 (1994).
Use of the word “may” in a statute indicates that the decision is committed to the discretion of the party authorized to take action. See Matzke v. Block, 542 F. Supp. 1107, 1114 (D. Kan. 1982); see also Bell v. Kent-Brown Chevrolet Co., 1 Kan. App. 2d 131, 134- 35, 561 P.2d 907 (1977) (interpreting whether K.S.A. 1975 Supp. 50-634[e] was discretionary in allowing attorney fees in an action under the Kansas Consumer Protection Act).
K.S.A. 79-3268(f) is clear and unambiguous. The word “may,” as applied by the legislature in K.S.A. 79-3268(f), renders the award of attorney fees within the discretion of the district court upon a finding that the claim or assessment challenged is without a “reasonable basis in law or fact.”
Several federal courts have equated the phrase “substantially justified” with “reasonable basis in law and fact.” See Pierce v. Underwood, 487 U.S. 552, 565, 101 L. Ed. 2d 490, 108 S. Ct. 2541 (1988). In an action to recover attorney fees against the Secretary of Housing and Urban Development under the Equal Access to Justice Act (28 U.S.C. § 2412[d][l][A] [1995]), the Supreme Court held that “substantially justified” means “justified in substance or in the main’ — that is, justified to a degree that could satisfy a reasonable person. That is no different from the ‘reasonable basis both in law and fact’ formula adopted by [other courts].” Pierce, 487 U.S. at 565. Stevenson cites several federal decisions awarding attorney fees under the “substantially justified” standard. These cases all involve the assessment of liability against persons clearly not liable under existing statutes (see Pate v. U.S., 982 F.2d 457 [10th Cir. 1993]; Beaty v. U.S., 937 F.2d 288, 292-93 [6th Cir. 1991]) or continued government prosecution after the taxpayer presented a “plethora of precedent to the IRS” clearly establishing its nonliability, Bouterie v. C.I.R., 36 F.3d 1361, 1370 (5th Cir. 1994). As discussed below, the statutory provisions relied on by the KDR are not so clear as to render its actions unreasonable as a matter of law.
“‘Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable [person] would take the view adopted by the trial court.’ [Citation omitted.]” In re Marriage of Wade, 20 Kan. App. 2d 159, 168, 884 P.2d 736 (1994), rev. denied 256 Kan. 995 (1995).
The KDR asserted Stevenson’s personal liability under K.S.A. 1995 Supp. 79-2971, which provides:
“Any individual who is responsible for collection or payment of excise taxes imposed under the provisions of K.S.A. 12-1692 et seq., 12-1696 et seq., 41-501 et seq., 79-3301 et seq., 79-3370 et seq., 79-3401 et seq., 79-3490 et seq., 79-34,108 et seq., 79-3817 et seq., 79-4101 et seq. or 79-41a01, and amendments thereto, or for control, receipt, custody or disposal of funds due and owing under such acts who fails to collect such tax, or account for and pay over such tax, or attempts in any manner to evade or defeat such tax or the payment thereof shall be personally hable for the total amount of the tax evaded, or not collected, or not accounted for and paid over, together with any interest and penalty imposed thereon. The provisions of this section shall apply regardless of the relationship with the taxpayer held by such individual and regardless of the form under which the taxpayer conducts business, whether a sole proprietorship, partnership or corporation.”
The KDR contends Stevenson’s corporate status renders her a responsible party under the statutory language of K.S.A. 1995 Supp. 79-2971. Whether Stevenson is in fact liable is irrelevant. A reasonable reading of the statutory language justifies the KDR’s assertion that personal liability attaches to corporate officers “in charge” of a drinking establishment which has failed or refused to pay its liquor drink taxes.
The KDR’s position rests on the interplay of K.S.A. 1995 Supp. 79-41a02 and K.S.A. 1995 Supp. 79-41a03 with the reference in K.S.A. 1995 Supp. 79-2971 to “K.S.A. 79-41a01, and amendments thereto.” K.S.A. 1995 Supp. 79-41a02 imposes a 10 percent tax on the gross receipts derived from alcohol sales by any club, caterer, or drinking establishment. If the seller fails to remit the tax, K.S.A. 1995 Supp. 79-41a03(c) applies. It authorizes the Secretary of Revenue to
“collect the tax imposed hereunder and to adopt such rules and regulations as may be necessary for the efficient and effective administration and enforcement of the collection thereof. Whenever any club, caterer, drinking establishment or temporary permit holder hable to pay the tax imposed hereunder refuses or neglects to pay the same, the amount, including any penalty, shall be collected in the manner prescribed for the collection of retailers’ sales tax by K.S.A. 79-3617 and amendments thereto.”
K.S.A. 1995 Supp. 79-3617 provides for the collection of delinquent taxes from “any taxpayer” by issuing a tax warrant. K.S.A. 1995 Supp. 79-41a01 et seq., the Liquor Drink Tax Act, does not define a “taxpayer.” K.S.A. 79-3601 et seq., the Kansas Retailers’ Sales Tax Act, defines a “taxpayer” as “any person [including individuals] obligated to account to the director for taxes collected under the terms of this act.” K.S.A. 1995 Supp. 79-3602(i); see also K.S.A. 1995 Supp. 79-3602(a) (defining “persons”).
In summary, K.S.A. 1995 Supp. 79-2971 appears to impose personal liability on Stevenson and directly references the Liquor Drink Tax Act. That Act references the Kansas Retailers’ Sales Tax Act, which authorizes the issuance of tax warrants against “any taxpayer” liable to the KDR. K.S.A. 1995 Supp. 79-3617. Although the district court found the KDR acted unconstitutionally, it cannot be said that the claim asserted by the KDR was without a reasonable basis in law or fact. In view of the ambiguity of the personal liability statute and the means provided for its enforcement, it cannot be said that the district court abused its discretion in finding that the KDR acted under the color of the law.
Stevenson’s complaint that the district court applied a “good faith/bad faith” standard rather than the “reasonable basis in law or fact” standard is without merit. Although the district court did mention the absence of bad faith by the KDR when it denied Stevenson’s attorney fee request, the court also stated that the KDR acted with “some basis and belief” and with “colorable authority.” The journal entry of judgment was prepared by Stevenson’s attorney. It specifically provides, as a finding of the court, that the KDR “did not act unreasonably in attempting to file the subject tax warrant, so Patricia M. Stevenson’s K.S.A. 79-3268(f) request for her attorney’s fees should be denied.”
Finally, the KDR’s late suggestion made during oral argument that a problem may exist concerning the finality of the judgment and subject matter jurisdiction because “there was no final order entered” as to the codefendant, Marsha Spangler, is of no material consequence. Spangler was named as a codefendant only in her official capacity as die recipient of tax warrants for filing and entering on the appearance docket pursuant to statute. Spangler filed an answer, disclaiming any interest and stating that she would “comply with the order of the court in this matter.” The district court’s journal entry of judgment noted the clerk’s disclaimer and restrained the KDR from issuing any tax warrant. There was no appeal from that order. There is, therefore, no tax warrant to be filed in the clerk’s office and no action to be taken with respect thereto. Spangler is bound by her acquiescence to abide by the judgment.
In view of the findings expressed herein, Stevenson’s application for attorney fees must be denied.
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Pierron, J.:
Ronald Peters appeals the dismissal of his petition for writ of habeas corpus. Peters’ arguments on appeal concern the Kansas Legislature’s 1994 amendments to K.S.A. 60-1501 (Ensley), which added a 30-day statute of limitations on claims arising under the statute. See L. 1994, ch. 227, § 3. We affirm.
The facts in this case are uncontroverted. Peters was paroled from Lansing Correctional Facility in 1991 for a 5- to 20-year sentence for aggravated robbery. On April 23, 1993, fhe Department of Corrections issued a violation report charging Peters with absconding from parole supervision and leaving his parole district without permission. Since he was on parole in Oregon, Peters waived extradition and returned to Kansas for a parole revocation hearing. On June 9,1993, the Kansas Parole Board (KPB) revoked Peters’ parole and set May 1994 for his next parole hearing.
Peters was denied parole on May 9, 1994. The action notice completed by the KPB stated the following reasons:
“After considering all the statutory factors contained in KSA 22-3717, the decision of the KPB is as follows: Pass to May 1996. Pass reasons: history of criminal activities [1968-burglary (1 year probation), 1969-robbeiy (270 days), 1970-failure to apperar [sic], 1970-possession of paraphemalic [sic], 1970-possession of marijuana, 1972-burglary, 1973-possession of stolen property, 1973-theft (7 years), unlawful possession of a controlled substance (5 years), assault on a peace officer, escape]; 5 times in prison; objections regarding parole.”
Peters wrote a letter to the KPB objecting to his parole denial and demanding a new hearing. The KPB responded to Peters in a memo dated June 10,1994, stating: “This is to acknowledge receipt of your recent correspondence to the Kansas Parole Board. The Board has reviewed your correspondence, along with your file, and their decision is no change in their previous action.” The KPB sent an identical memo, except for the date, to Peters on July 7, 1994.
On August 8, 1994, Peters filed a petition for writ of habeas corpus pursuant to 60-1501. In the petition, Peters argues that there were irregularities in the conduct of his parole revocation hearing which rendered his confinement unlawful; that the KPB exceeded its authority, relied upon ihe wrong standards, and failed to give reasons for denying parole; and that the KPB considered inaccurate information regarding his criminal history.
On February 6, 1995, the KPB filed a motion to dismiss Peters’ petition, claiming that he had failed to file the petition within 30 days of final action by the KPB as required by K.S.A. 60-1501 (Furse). In an order dated March 24, 1995, the district court agreed with the KPB and summarily dismissed Peters’ petition. The relevant portion of the district court’s decision states as follows:
“Briefly, the pleadings indicate that Peters was denied parole on May 9, 1994, by the Kansas Parole Board. Peters appealed this decision to the parole board and the appeal was denied on June 10,1994. On July 1,1994, K.S.A. 60-1501, as amended by L. 1994, Ch. 227, § 3, became effective, requiring all appeals by inmates to be filed within 30 days of final action. Petitioner filed this petition for writ on August 8, 1994, some 59 days after his appeal was denied and 38 days after tire above statute went into effect. The statute was in effect on the date of this action, and petitioner was required to comply with its mandate in order to file a valid petition.
“A district court may summarily dismiss a petition for failure to state a claim when it appears beyond doubt that the petitioner can prove no set of facts that would entitle him to relief. Shepherd v. Davies, 14 Kan. App. 2d 333, 335, 789 P.2d 1190 (1990). Even allowing respondent 30 days to file an appeal after the statute went into effect, it appears that petitioner’s writ is untimely. Respondent’s motion to dismiss will be granted.”
Contrary to the standards of review cited by both parties in this case, our review is not based on the typical summary dismissal of a habeas corpus petition. If the district court had dismissed this case on the merits of Peters’ arguments, our review would be whether the district court was correct in finding that it appeared beyond a doubt that Peters could prove no set of facts which would entitle him to relief. See Payne v. Kansas Parole Board, 20 Kan. App. 2d 301, 308, 887 P.2d 147 (1994). Here, the district court summarily dismissed Peters’ habeas corpus petition as untimely in violation of the new 30-day rule in K.S.A. 60-1501 (Furse). Our review is based on the court’s interpretation of the 1994 amendments to K.S.A. 60-1501 (Ensley). “Interpretation of a statute is a question of law. An appellate court’s review of a question of law is unlimited.” Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994).
For his first argument on appeal, Peters contends the district court erred in dismissing his petition for writ of habeas corpus because the 1994 amendments to 60-1501 cannot be retroactively applied to him. Peters states the district court could rely on the 30-day time limit in 60-1501 only if the statutory changes applied to a cause of action that had accrued but which had not yet been filed. The State responds that the district court dismissed Peters’ petition because it had not been filed within the 30-day period following July 1, 1994, the effective date of the 1994 amendments, not 30 days after the final action of the KPB. Therefore, the State argues, it was not applied retroactively.
K.S.A. 60-1501(b) (Furse) provides that except as otherwise stated in K.S.A. 60-1507,
“an inmate in the custody of the secretary of corrections shall file a petition for writ pursuant to subsection (a) within 30 days from the date the action was final, but such time is extended during the pendency of the inmate’s timely attempts to exhaust such inmate’s administrative remedies.”
Peters cites Stevenson v. Topeka City Council, 245 Kan. 425, 427, 781 P.2d 689 (1989), for authority that even though the 1994 amendments to 60-1501 were procedural in nature, applying the amendments to him had a substantive impact on his vested rights. Peters contends he has a substantive right to challenge his confinement. In Stevenson, the plaintiff had a personal injury claim against the City of Topeka. The statute of limitations on this action expired on July 23, 1987, and the plaintiff filed suit on July 21, 1987. The plaintiff sent a letter to the city attorney on June 24, 1987, notifying him of the injury and a claim for damages. On July 1, 1987, the amendments to K.S.A. 12-105b (Ensley) became effective and required a plaintiff to give the City formal notice of a claim and to receive the denial of that claim in whole or part before commencing a suit. 245 Kan. at 426.
The district court dismissed Stevenson’s suit for failing to comply with the amendments to 12-105b. The Kansas Court of Appeals agreed with the district court, but the Kansas Supreme Court subsequently reversed the decision. The Stevenson court held that the 23 days from the enactment of the amendments to the date barring Stevenson’s action was not a “reasonable time after the enactment of the statute for [appellant] to comply with the notice requirements before bringing suit.” 245 Kan. at 429. The Stevenson court stated that although the amendments were procedural, the statute could not be given retroactive application because it would modify a vested right of Stevenson.
We find the facts of Stevenson are distinguishable because notice is not at issue in the present case and Peters had a “reasonable time after the enactment of the statute” to file his petition for writ of habeas corpus. The Kansas Legislature has determined that petitions for writ of habeas corpus under K.S.A. 60-1501 shall be filed within 30 days of when the action was final. The intent of the legislature is clear. “ ‘It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained.’ ” City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993). The court in Kinyon v. Soldiers’ Compensation Board, 118 Kan. 367, 368, 234 Pac. 949 (1925), stated: “The opinion of the legislature is entitled to great weight upon the question of the reasonableness of a particular time.”
The KPB relies on the century-old rule found in Sohn v. Waterson, 84 U.S. 596, 21 L. Ed. 737 (1873), on appeal from the Circuit Court of the United States for the District of Kansas. In Sohn, the Supreme Court faced Kansas’ newly enacted 2-year statute of limitations on actions on judgments of other states. The defendant had been a resident of Kansas since 1854 and had a judgment obtained against him in Ohio on October 17, 1854. The Kansas Legislature enacted the new statute on February 10, 1859, more than 4 years after the Ohio judgment. The plaintiff filed his action in Kansas in August 1870, and the case was dismissed based on the statute of limitations. The Supreme Court affirmed a retroactive application of the statute of limitations and held that holders of past causes of action had to be granted the full statutory time, measured from the statute’s effective date, to bring their claims. Since the plaintiff had not filed his action within 2 years of the enactment of the statute, his action was barred. 84 U.S. at 600.
Allowing Peters 30 days from the enactment of the 1994 amendments to 60-1501 to file his claim is also supported by Superior Engraving Co. v. National Labor Rel. Bd., 183 F.2d 783 (7th Cir. 1950), cert. denied 340 U.S. 930 (1951). The court relied on the “well-settled rule, expressed in such cases as [Sohn], that where a statute creates a period of limitations where none had previously existed, the period will begin to run with respect to preexisting claims, on the effective date of the statute.” 183 F.2d at 789.
In re Estate of Forrester, 13 Kan. App. 2d 98, 762 P.2d 198, rev. denied 244 Kan. 737 (1988), is also instructive. In Forrester, this court considered a statute where the statute of limitations for filing a petition for probate of a will was shortened from 9 months to 6 months. K.S.A. 1985 Supp. 59-617 became effective after the testator’s death but before the petition for probate had been filed. Relying upon the principles set forth in In re Estate of Reed, 157 Kan. 602, 142 P.2d 824 (1943), this court held the statute in effect when a petition is filed controls if there is reasonable time to commence die proceeding before the expiration of the shortened limitation period provided in the amended statute. Therefore, since the appellant had 3 months remaining in which to file the petition under the amended statute, a reasonable amount of time, the statute was given retroactive application. 13 Kan. App. 2d at 104.
Pursuant to Sohn, Superior Engraving Co., and Forrester, the 30-day rule enacted by the legislature in 1994 applies to a cause of action which has accrued but which has not yet been filed. However, the above cases support the argument that the statute of limitations started running from July 1, 1994, the enactment date of the amendments, not June 10, the date of the final action of the KPB. Unfortunately for Peters, he filed his petition for writ of habeas corpus on August 8, 1994, outside of the 30-day period following July 1, 1994. Therefore, the district court correctly dismissed Peters’ petition.
We also find no merit in Peters’ argument that July 7, 1994, the date he received the second KPB memo, is the date upon which the KPB’s action was final. Peters concedes he received the KPB’s first memo dated June 10, 1994, informing him that the KPB had considered his letter, reviewed his file, and decided not to change its decision denying his parole. Other than to state the memos were identical in content, Peters does not provide any arguments as to why the date of the second memo should control.
The district court ruled correctly in this matter. Peters did not file his petition for writ of habeas corpus within 30 days of the final action of the KPB or within 30 days of the effective date of the 1994 amendments to 60-1501, and therefore his petition is barred.
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Green, J.:
Marc J. Fischer appeals from the sentence that the trial court imposed after he pleaded guilty to criminal threat. He contends that the trial court erred in considering his previous juvenile adjudications in computing his criminal history. We disagree. Additionally, Fischer contends that the trial court improperly entered a departure sentence when it failed to furnish any substantial and compelling reasons for the departure. We agree and remand for resentencing.
This criminal threat offense was Fischer s first adult felony. Fischer’s previous criminal history included three juvenile adjudications that would have been nonperson felonies if Fischer had been an adult. Fischer was on juvenile probation for one of those adju dications when he committed the current offense. The trial court determined that Fischer’s criminal severity level and history was a 9-E. Although the trial court noted that Fischer’s criminal severity level and history would normally entitle him to presumptive probation, the trial court sentenced Fischer to incarceration. The trial court determined that it could impose imprisonment without entering a departure sentence because Fischer committed his current offense while he was on juvenile probation.
Because these issues require us to interpret a statute, our review is unlimited. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 283, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
Fischer first argues that the trial court erred in considering his previous juvenile adjudications as part of his criminal history. In State v. LaMunyon, 259 Kan. 54, 61-62, 911 P.2d 151 (1996), our Supreme Court addressed the same juvenile code, due process, and ex post facto arguments that Fischer now makes and determined them to be unpersuasive. Consequently, Fischer’s arguments must fad.
Next, Fischer argues that the trial court erred when it determined that his juvenile probation met the probation requirement of K.S.A. 21-4603d. Fischer further argues that because of that error, the trial court entered a departure sentence. K.S.A. 21-4603d(a) states:
“When a new felony is committed while the offender is ... on probation, . . . the court may sentence the offender to imprisonment for the new conviction, even when the new crime of conviction otherwise presumes a non-prison sentence. In this event, imposition of a prison sentence for the new crime does not constitute a departure.”
The State, however, argues that because Fischer’s juvenile probation was equivalent to being on probation for a previous felony conviction, the trial court’s imposition of a prison sentence for Fischer’s “ ‘new [felony did] not constitute a departure.’ ”
Fischer argues that the legislature’s use of the term “new” in front of “felony” shows that the legislature intended the provision to apply only to adult probation from a previous felony. We recently addressed an identical provision in State v. Dillard, 20 Kan. App. 2d 660, Syl. ¶ 3, 890 P.2d 1248 (1995). In Dillard, we specifically stated that the provision only applies to offenders who are on felony probation when they committed their new felony.
Therefore, we must determine whether a juvenile probation for a juvenile adjudication that would have been a felony if the juvenile had been an adult is the same as being on probation for a previous felony conviction. Criminal probation is defined as “a procedure under which a defendant, found guilty of crime upon verdict or plea, is released by the court after imposition of sentence, without imprisonment.” (Emphasis added.) K.S.A. 21-4602(c). Recently, we stated that “[t]he plain language of the Juvenile Offenders. Code provides that adjudications under the code are not criminal convictions.” In re J.E.M., 20 Kan. App. 2d 596, 600, 890 P.2d 364 (1995).
In J.E.M., a juvenile was charged with stealing cigarettes that had a value of less than $500. Normally, this value would have made the crime a misdemeanor. However, under K.S.A. 1993 Supp. 21-3701, the crime could be classified as a felony if a defendant had committed two previous thefts within 5 years of the current offense. J.E.M. had been adjudicated twice for theft as a juvenile during the 5-year period before his current offense. Because of J.E.M.'s previous adjudications, the State argued that he should be charged as a felon. On the other hand, J.E.M. argued that “the clear intent of the legislature [was] to treat juveniles differently from adults.” 20 Kan. App. 2d at 598. In agreeing with J.E.M., the court stated:
“The legislature is aware that juvenile adjudications do not constitute criminal convictions. In drafting the Sentencing Guidelines Act, the legislature took great care to include criminal convictions and juvenile adjudications as part of the criminal history computation. Had the legislature meant for juvenile adjudications to be counted as convictions for the purpose of enhancing the crime severity level, it certainly could have drafted the statute to include them.
“One of the more common rules of statutory interpretation is that expressed in the Latin maxim expressio unius est exclusio alterius, i.e., the mention or inclusion of one thing implies the exclusion of another. State v. Luginbill, 223 Kan. 15, 20, 574 P.2d 140 (1977). By specifically including juvenile adjudications in the guidelines statutes relating to criminal history computations and not including similar language in K.S.A. 1993 Supp. 21-3701, the legislature has demonstrated its intention that juvenile adjudications not be used to enhance the severity of a theft conviction.” 20 Kan. App. 2d at 600-01.
The analysis of the J.E.M. court is equally applicable to this case, where the legislature has failed to specifically include felonies committed by defendants while on juvenile probation under K.S .A.- 21-4603d.: Furthermore, Fischer does not meet the definition . of a “juvenile felon.” The Juvenile Offenders Code defines a “juvenile felon” as “those persons who are 14 or 15 years of age at the time of the offense alleged in the complaint, such offense is a class A or B felony, if the offense was committed before July 1, 1993, or an off-grid felony, a nondrug crime ranked at severity level 1,2 or B or a drug crime ranked at severity level 1 or 2, if the offense was committed on or after July 1, 1993, such person was prosecuted as .an adult and such person has been found guilty of such offense. ” (Emphasis added.) K.S.A. 38-16,112. First, Fischer’s adjudication that caused him to be placed on juvenile probation does not meet the severity level of the crimes referred to in this section. Second, Fischer was not prosecuted for that adjudication as an adult. Consequently, the State’s argument must fail.
Because the trial court failed to furnish substantial and compelling reasons for imposing a departure sentence in this case, we must remand for resentencing.
Affirmed in part, reversed in part, and remanded. | [
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Gernon, J.:
FGB Realty Advisors, Inc., f/k/a First Gibraltar Realty Advisors, Inc., (FGB) appeals from an order which granted summary judgment to David L. and Lavetta Keller, finding that FGB’s action was barred by the statute of fimitations.
The Kellers executed a promissory note in April 1986, secured by a mortgage on their property, in the amount of $37,650 with Barber County Savings and Loan Association. FGB subsequently acquired the note and mortgage in 1993. The Kellers defaulted on the note in 1988.
In July 1993, FGB notified the Kellers by letter that it was exercising the note’s option to accelerate the entire balance of the loan and that it'was then due. On March 23, 1995, FGB filed an action against the Kellers to foreclose the mortgage.
The Kellers filed a motion to dismiss on the grounds that the 5-year statute of limitations barred the action. Thereupon, the court took evidence and considered matters outside the pleadings, which we construe to convert the motion to dismiss to a motion for summary judgment. The court then made its ruling, and FGB.appeals.
FGB argues that the statute of limitations does not run until the declaration is made of the lender’s decision to exercise the option to accelerate the entire debt. FGB maintains the date trigger in . the statutory bar imthis case was July 27, 1993, when its demand letter was mailed to the Kellers.
' The Kellers argue that the demand for full payment of the debt was made in 1989 by the predecessor savings and loan and, therefore, FGB’s foreclosure action is barred by the 5-year statute of limitations.
Everyone agrees that the statute of limitations for an action on a promissory note and mortgage is 5 years. See K.SfA. 60-511(1). The issue here is when the statute of limitations begins to run for such an action when the note contains ¿n acceleration clause.
Kansas courts have recognized that the acceleration clause in a note or mortgage dictates when a foreclosure action accrues for purposes of the statute of limitations. If the clause provides that the entire debt becomes due on the failure to make payments, the statute of limitations begins to run with the default. Miles v. Hamilton, 106 Kan. 804, 806, 189 Pac. 926 (1920). However, if the clause provides the holder of the note with the option to mature the entire debt upon default, the statute of limitations does not begin to run until the holder exercises the option to accelerate the entire amount. Kennedy v. Gibson, 68 Kan. 612, 617, 75 Pac. 1044 (1904). If the holder elects not to exercise the option upon default, “the statute would not run earlier than the time originally fixed for the maturity of the note.” 68 Kan. at 617.
Here, the acceleration clause in the note states: .
'T9. Acceleration: Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument. . . The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the nonexistence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding.”
The above clause indicates that the lender has the option of accelerating the entire indebtedness upon the borrower s default. The clause also indicates the lender must notify the borrower and give the borrower time to cure the default. However, once the borrower is properly notified and given an opportunity to cure the default, further demands are not required before the lender may foreclose on the note and mortgage.
It is well settled that the holder of a note containing an option to accelerate must clearly and unequivocally express an intention to exercise the option and then affirmatively act toward enforcing that intention in order to properly exercise the option. See Annot., 5 A.L.R.2d 968, 970; Annot., 161 A.L.R. 1211, 1212 (citing cases from 22 states).
In Wentland v. Stewart, 236 Iowa 661, 666, 19 N.W.2d 661 (1945), the Iowa Supreme Court held that the “mere threat to commence suit, followed by a subsequent statement that ‘all is now due/ is not sufficient either to set in motion the limitations statute or to establish an earlier maturity date for any purpose.” The court emphasized that the statute of limitations begins running “from the exercise of the option but not from the mere declaration that the principal is due.” 236 Iowa at 666. The court noted that after the declaration occurred in that case, no affirmative acts were made toward enforcing the declared intent. 236 Iowa at 667.
The record in this case is void of any affirmative acts on the part of the savings and loan to enforce any declared intent of acceler ating the debt. The savings and loan employee testified that the savings and loan’s successor in interest placed a hold on all foreclosure actions at the approximate time a demand was sent to the Kellers in 1989. The Kellers also acknowledged that while they had received several letters threatening foreclosure, no actions were ever brought. Moreover, there is nothing in the record indicating that the letters sent by the prior holders of the note clearly and unequivocally stated that they were exercising the option to accelerate the entire debt. Therefore, we conclude that the saving and loan’s demand letter is not sufficient to constitute an election of the option to accelerate and set the statute of limitations in motion. See Wentland v. Stewart, 236 Iowa at 666.
The evidence presented here does not conclusively show as a matter of law that the savings and loan pursued any type of affirmative action, other than sending a demand for payment with a right to cure notice. The option to accelerate was never exercised at that time. The record does indicate that in July 1993, FGB sent the Kellers a formal demand in which it clearly and unequivocally stated that it was electing to exercise the option to accelerate the balance of the loan. FGB also affirmatively filed a foreclosure action in March 1995.
We conclude that the statute of limitations did not begin to run until FGB mailed its letter in July 1993. This finding requires us to reverse the judgment of the district court and remand for further proceedings consistent with this opinion.
Reversed and remanded. | [
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The opinion of the court was delivered by
Buroh, J.:
The action was one by the owner of real estate to eject the holder of a sheriff’s deed issued pursuant to an execution sale. The court adjudged the plaintiff to be owner and entitled to possession, but gave the defendant a lien enforceable by execution after expiration of ninety days from date of judgment. The plaintiff appeals.
L. M. Fort and the plaintiff were joint owners of the real estate. The defendant obtained judgment against Fort in the court of Topeka, and on August 15, 1916, filed an abstract of the judgment with the clerk of the district court of Shawnee county. In November, 1916, Fort quitclaimed to the plaintiff. Afterwards execution was issued on the judgment, the defendant purchased at the sheriff’s sale, and in July, 1919, a sheriff’s deed was issued to him. The sale and deed covered, not merely the undivided interest which had belonged to Fort, but the entire property in the land. For this reason, the court set aside the deed.
The sole ground on which the defendant’s lien is contested is that the abstract of judgment was not properly authenticated, and consequently would not sustain an execution. The journal entry of judgment shows that a supplemental answer was filed by the defendant, that special findings were returned by the jury, and that judgment, was rendered on the pleadings and findings, the defend-' ant’s lien being awarded on his supplemental answer. These proceedings are not abstracted and, so far as this court knows, may sustain the lien, independently of the abstract of judgment. This opinion might well stop here, but both parties have submitted the case on the sufficiency of the abstract of judgment.
The court of Topeka is a substitute for justice of the peace courts in the city, to the extent permitted by the constitution. The statute creating the court confers upon it the powers of justices of the peace, provides for a clerk as an officer of the court, and contains the following provisions:
“All writs and process of every kind in cases brought or pending in said city court shall1 be issued by the judge thereof, or in case of his absence or when otherwise engaged, then by the clerk thereof in the name of the judge, in the same manner as such writs and process are issued by justices of the peace.
“The clerk of said court shall assist-the judge thereof in recording the proceedings of said court, making out writs, process, and other papers necessary to be signed or issued by said judge, administer oaths required in judicial and other proceedings before such court or judge thereof, file all papers in cases in said court, docket cases, and set the same for trial in the absence of the judge, and perform such other clerical duties in relation to the proceedings of said court as may be decided by said judge.” (Gen. Stat. 1915, §§ 3264, 3276.)
A judgment of a justice of the peace or of the city court is not a lien on the real estate of the judgment debtor. To effect a lien, an abstract of judgment must be filed in the district court of the county. The act creating the court of Topeka is silent on the subject of docketing judgments in the district court, and the practice before justices of the peace governs. The code merely prescribes a form of abstract, which concludes as follows:
“I hereby certify that the foregoing is a full and correct abstract of a judgment rendered by me in the suit above entitled.-, Justice of the Peace.” (Gen. Stat. 1915, § 7822.)
In this instance, the abstract bore the typewritten signature of the judge pro tem. of the court of Topeka, duly attested by the clerk. The judge pro tem. was called as a witness, and testified he had no recollection of the case, or of anything incidental to it. An abstract of judgment rendered by a justice of the peace is prepared from data appearing on the justice’s docket, and its certification is purely a clerical matter. There is nothing judicial about it, the certificate being made by the justice because he has no clerk. The certification of an abstract of judgment rendered by the court of Topeka is purely a clerical matter. The judge of the court could have decided, and made it a rule of court, that abstracts should be certified by the clerk. Since authority of law exists for certification in the form which the abstract involved presents, the presumption of regularity of official conduct prevails until overthrown by proof, and the proof was not sufficient for that purpose.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.;
This was an action for damages to plaintiff’s automobile caused by a collision with defendant’s runaway team.
The jury answered special questions, and rendered a verdict for plaintiff. The special findings read:
“1. Do you find from the evidence that the team of horses owned by the defendant were tied or hitched by . . . the driver of defendant’s team, at the place where he left them to enter the building of the Coleman Lamp Company? Answer: No. We find one only horse hitched.
“2. In hitching the team, . . . did . . . the driver . . . exercise that degree of care ordinarily exercised by a reasonably prudent man in the discharge of his duties under the same or similar circumstances? Answer: No. He did not hitch the spirited horse. . . .
“4. Describe accurately the way the team was hitched. . . . Answer: A snap attached to a chain (evidence indefinite as to size of both snap and chain) with a 50-lb. weight at one end, was attached to the bit of left-hand horse.
“5. If you find for plaintiff, then state on what negligence of defendant you base your verdict. Answer: Neglect by driver in not tying or hitching right-hand horse, shown by driver’s evidence to be high-spirited.
“6. Is-it not a fact that the defendant’s team was hitched on the day of the accident in the usual and customary way adopted generally by drivers of teams upon the streets of the city? Answer: No.
“7. Is it not a fact that it was ordinarily safe for defendant’s servants to hitch its team in the manner it was hitched on the day of the accident? Answer: In cases where both horses are known to be gentle it ordinarily would be.
“8. Had the defendant’s team ever before run away, before June 7, 1921? Answer: No evidence shown that they had.
“9. Was not this collision what might be termed merely an unfortunate accident for which the negligence of no one is responsible? Answer: No.
“10. What caused the defendant’s team to run away? Answer: Evidence shows no cause. . . .
“12. Was the team a tractable, well-brolre team? Answer: Evidence shows a well-broke, high-spirited team with the right-hand horse the more spirited.
“13. Did the team drag the weight in question away, or was it unsnapped by some thief, or some intermeddler? Answer: No evidence in this matter.
“14. Had not the team been used upon the streets in the city of Wichita for several months prior to the time of the accident complained of, without their getting loose, attempting to get-loose or run away? Answer: Evidence shows they had been so used, but there is no evidence showing that they had never tried to get loose, or attempted to run away.”
Judgment was entered for plaintiff, and defendant appeals, contending that the special findings establish no negligence, and that the negligence found by the jury was not shown to have been the cause of plaintiff’s damages. The litigants do not dispute about the pertinent law of the case. They agree that all that is required of an owner or driver who temporarily leaves his team of horses in the street is ordinary and reasonable care to prevent their escape; that such degree of care is governed by the circumstances, and that the failure to exercise the ordinary care of prudent men under such circumstances is negligence.
(Moulton v. Aldrich, 28 Kan. 300, 307; Stephenson v. Corder, 71 Kan. 475, 478, 479, 80 Pac. 938; 13 R. C. L. 285, 286.)
The findings show that this team was high-spirited, and that the right-hand horse, which was not hitched, was the more high-spirited of the two. The jury found that the driver’s failure to tie the more high-spirited horse was negligence. Under the circumstances this was a matter for the jury’s determination. Nor can the jury’s finding that the “evidence showed no cause” for the runaway defeat the finding of negligence and defendant’s liability for its consequences. The inconsistency between this finding and the finding of negligence and the verdict is more specious than real. The insufficient hitching was the efficient and proximate cause, whatever other unknown cause, if any, may also have contributed. (City of Joliet v. Shufelt, 144 Ill. 403; 32 N. E. 969.) The team being high-spirited and the more high-spirited horse being unhitched, the horses followed their natural disposition to be off and away, with the consequent damage to plaintiff’s automobile. It cannot be said as a matter of law that it was not negligence to leave the more spirited horse unhitched, and this compels an affirmance of the judgment. | [
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The opinion of the court was delivered by
DawsoN, J.:
This is one of a series of actions brought by the state to clear a public highway of encroachments which prevent and hinder the laying of a paved road in and near the village of Pauline, a few miles south of Topeka.
It appears that for some time prior to 1869 there was a public highway, sixty feet wide, on the section line running north and south on the west side of section 31, town 12, and on the west side of sections 6 and 7 in town 13, all in range 16, Shawnee county. In 1869 the section line thereabout was condemned and appropriated for a width of 100 feet, and for a distance of some two miles, as a right of way for the Santa Fe railroad. This necessitated the abandonment of the public highway, and in consequence thereof, in 1871, certain interested householders petitioned the board of county commissioners to lay out a new county road contiguous to and parallel with the railway right of way on its east side. The county board appointed viewers, who recommended that the road be changed as prayed for, and in January, 1872, the .board adopted the viewers’ heport and ordered the road opened. The road has been a public, traveled highway ever since. As the years passed, a small village arose along this highway near the railway station at Pauline. Several tracts were conveyed by the early owners of section 31, and thereon have been erected, facing westward, on and near the east side of the highway, a schoolhouse, a church, several residences, and a small store and garage. Shade and fruit trees, fences and hedges also exist thereabout.
Some months ago the board of county commissioners set about the construction of a paved road in that locality, federal-aid project No. 106 of Capitol Highway, and the precise limits of the public road through Pauline for the first time became important. It was then discovered that apparently the defendant’s hedge and fence and some of her shade trees encroached to the center of the highway, or to a line thirty feet east of the Santa Fe right of way. In some of the'other lawsuits of this series, the front yards of the property owners are also apparently in the highway, and in one or two instances there are buildings which encroach thereon.
On the issues joined and the evidence adduced, the trial judges of the Shawnee district court sat together so as to expedite the causes and to lessen the burden of repetition of testimony in the several actions involving the same principal questions, and the court made findings of fact and conclusions of law whose general tenor was favorable to the plaintiff, and held that defendant was unlawfully obstructing the highway, that her fence was a nuisance, and that it should be abated and removed, and that she be enjoined from holding possession of any portion of the highway and from excluding the public therefrom, and from hindering or interfering with the construction of the permanent improvement thereof.
Judgment was entered accordingly, and defendant appeals, urging various points, which will be noted in the order of their presentation.
The first error relates to the denial of a jury trial. She contends that the possession of real estate was in issue, and also the precise location of the road as interpreted by the use thereof for fifty years. But this contention is unsound. A lawsuit between the state and an individual over an alleged obstruction to the highway and the incidental question of the precise location and extent of the highway is not a controversy between litigants for the mere possession or recovery of a piece of real property. (Gen. Stat. 1868, ch. 80, §§ 266, 267; Civ. Code § 279); it is a suit in equity to be tried by the court. (Woodman v. Davis, 32 Kan. 344, 4 Pac. 262; Cole v. Drum, 109 Kan. 148, 153, 197 Pac. 1105.) And so far as the question of use is concerned, a jury would serve no purpose because the state concedes and the findings of fact determine that the east half of the road has never been actually traveled by the public but has always been occupied by the defendant and her predecessors in title. So there was here no jury question as in the case of Cemetery Association v. Meninger, 14 Kan. 312, cited by defendant.
But it is urged that the original location of the road cannot be determined from the record. We are constrained to hold otherwise. The original road down the section line was sixty feet wide. The railway straddled the section line with its right of way 100 feet wide. The new road petitioned for, viewed, recommended, and ordered opened for travel was immediately adjacent to and parallel with the railway right of way, and was also sixty feet wide. That the field notes of the surveyor who accompanied the viewers apparently show that he ran his line along the east side of the railway right of way instead of down the center of the new proposed highway as is customary when a new road is being surveyed, is of small consequence in a case where the record is so clear and complete as the one here presented. (Shaffer v. Weech, 34 Kan. 595, 9 Pac. 202; Molyneux v. Grimes, 78 Kan. 830, 98 Pac. 278; Hughes v. Veal, 84 Kan. 534, 540, 114 Pac. 1081.)
But it is said that this' new road sixty feet wide was never opened. It was opened, for its entire length but concededly has never been physically opened and used for its entire width. All the travel on this road for the fifty years of its existence has been on the west side of it, leaving the defendant’s fence and shade trees unmolested. However, it is as well settled by judicial precedent as it is clear by common sense that a road regularly laid out and traveled by the public does not have to be used .for its entire width in order to preserve its public character. Very few roads, except in highly congested communities, are so used. In sparsely settled rural districts the beaten path is usually of the width of the wagon tracks or other vehicles which travel thereon. Not infrequently prairie grass is mowed and garnered on the roadsides; sometimes crops are grown thereon. None the less, the full width of the established road is for public travel and public use whenever the expanding needs of the public so require. In Webb v. Comm’rs of Butler Co., 52 Kan. 375, 34 Pac. 973, the controlling facts were' analogous to those under consideration here. A highway had been laid out on the western line of Webb’s premises, one-half the width of which was on his land. There was a hedge fence on his western line, and for ten years or more he farmed and cultivated the land up to the hedge fence. The public used the west side of this road and did not use the east side of it within Webb’s hedge fence except when compelled to escape mud in the traveled part of the road. Webb brought injunction proceedings against the county commissioners to enjoin them from removing his fence and obstructions and from opening the unused side of, the highway occupied by him. The injunction was denied. This court said:
“There is no claim that the west half of the road as established was ever obstructed or closed. It was open the full length of the west line of plaintiff’s premises, and he has shown that there was considerable travel over the same. Having been legally authorized, laid out, and used, it is, in legal contemplation a public highway. The fact that the public may not use or travel over the full width of such a highway will not operate to narrow it. It is frequently the case that the full width of country roads is not improved or used for the reason that the necessities of the public for the time being do not require it; but such limited use will not lessen the right of the public to use the entire width of the highway when the increased travel and the exigencies of the public make it necessary. . . . The encroachments by the plaintiff upon this highway gave him no rights as against the public.” (p. 378; see, also, note in 6 A. L. R. 1210.)
The defendant cites and relies on the act of 1879 (ch. 150, § 1), Gen. Stat. 1901, § 6058, now repealed (Laws 1911, ch. 248), which provided that if any part of an authorized road should remain unopened for public use for seven years after the order was made for its opening, it should be vacated; but that statute concerned itself with the result of nonuser of some part of the longitudinal length of the road, and did not govern the matter of nonuser of the road’s established width. (Webb v. Comm’rs of Butler Co., supra.)
Defendant lays stress upon the field notes and plat of the county surveyor who aided the viewers in making the survey. It is undeniable that the surveyor ran his line along and upon the eastern limits of the Santa Fe right of way, just fifty feet east of the cen ter of the railway track and parallel thereto. From this she argues that this line, to be in accordance with the custom of surveyors (Quinn v. Baage, 138 Iowa 426; The People v. Commissioners of Highways of Redhook, 13 Wend. [N. Y.] 310), necessarily means that such line was the center of the new highway, and that only a thirty-foot strip of land east of the right of way was devoted to the new road, and that the other half of its width was taken, or intended to be taken, from the eastern side of the railway right of •way. The argument is not at all convincing. The public had lost a sixty-foot roadway by railway condemnation. The railway condemnation included a strip of 100 feet along the section line. The new road applied for, viewed, recommended, approved and established was a 60-foot road adjacent to and parallel to the railway right of way. “It being the intention of your petitioners” — so reads the road petition — “to ask for the straightening and relocating of the county road running across [north and south] said section so that the same shall run on the east side of the said railroad . . .”
In that early time when land was cheap public roads had a customary width of sixty feet, and the statute provided:
“The width of all county roads shall be determined by the viewers, and shall be not less than forty feet nor more than sixty feet wide.” (Gen. Stat. 1868, ch. 89, § 31.)
And in this case the viewers’ report reads:
“We are of the opinion that the said road . . . should be changed as petitioned for, that is . . . and recommend that it be confirmed and opened as located and surveyed, of the width of same [60] feet as the old road.”
The commissioners’ order endorsed on this report reads:
“Ordered that the within road be adopted, confirmed and ordered opened by order of the Board Jan. 3, 1872. Wm. Weulhouse, Chairman.”
We can give no countenance to the theory .that part of the railway right of way was taken to establish this relocated highway. There is nothing in the record to intimate that an encroachment on the right of way was contemplated, and the fact that in after years the public travel in some places did reach beyond the western limits of the road and on to the railway property, and that some culverts have been constructed the western edges of which are on the right of way detract not at all from the facts of controlling significance in this case.
Like the trial judges, this court appreciates the importance of this case to- the defendant and those similarly situated, but the record is clear that she has no defense to the state’s demand that she now remove the obstructions which she has hitherto been suffered to maintain within the sixty-foot limits of the established highway. Hitherto the state and the traveling public have found it unnecessary to discommode the defendant. Now the construction of the paved road with its requisite banks and ditches makes it imperative that defendant’s unlawful obstructions be removed.
The other matters pressed on our attention have had our studious* consideration, but they do not lessen the force of what we have already said, nor do they require discussion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff, Alexander A. Pfeifer, brought this action in replevin to recover certain personal property which the sheriff had seized to satisfy certain judgments against Adam A. Pfeifer, a brother of plaintiff.
The action was in two counts — one for 10 cattle, 1 horse and 21% stacks of wheat, of which plaintiff claimed to be the owner; and another was for 6 cows and 1 mare, as to which plaintiff claimed to have a special ownership as mortgagee.
The judgment creditors of Adam A. Pfeifer were substituted for the sheriff as defendants, and they denied that plaintiff owned or had any interest in the property. They claimed that it was owned by Adam, and that there was a conspiracy on the part of Adam and Alexander whereby Adam’s property was placed in the name of Alexander for the purpose of defrauding Adam’s creditors.
All the property in dispute was found by the sheriff on premises occupied by Adam. The evidence developed the fact that plaintiff’s claim of ownership in the live stock specified in count 1 was correct; and likewise tended to show that the mortgage on the other chattels was spurious. As to the wheat, the evidence tended to show that Adam made a pretended conveyance of his farm to Alexander, and a few months later Alexander reconveyed the farm to Adam, reserving the wheat crop to himself, and that this was done to hinder the creditors of Adam. .
Judgment was entered accordingly — for plaintiff on the cattle he claimed to own, and for defendants as to the wheat and also as to cattle covered by the chattel mortgage.
Noting plaintiff’s contentions on appeal, it is first asserted that there was no evidence to impeach the bona fides of the chattel mortgage. This contention lacks merit. There was testimony tending to show that Alexander was making common cause with Adam to hinder and delay Adam’s creditors, that the sale of Adam’s land to Alexander was a “make-believe sale,” and that Alexander was going to “hold” Adam’s property and that “they [the Pfeifer brothers] made a mortgage on different things to make it show that way.” As to the wheat, it was shown that after Adam conveyed his farnr to Alexander, Adam continued to farm it as before, and when it was reconveyed to Adam, Alexander reserved the wheat crop, but the circumstances tended to show that this reservation was only part of the brothers’ plan to keep it beyond the reach of Adam’s creditors. On one occasion after Alexander had reconveyed the farm to Adam, the latter, in the presence of plaintiff, made a sale of the land to a stranger, reserving this wheat crop to himself, not to Alexander, and both Alexander and Adam insisted on payment for the farm in cash, not by check, lest some creditors would “jump on” the purchase money. Another item of some evidential significance was that Alexander’s alleged ownership of the wheat and his chattel-mortgage note covering Adam’s personal property were not listed by plaintiff in his statement of personal property to the tax assessor. These and other circumstances resolved the issues into ordinary jury questions of" fact; the cross-examination of Alexander thoroughly discredited him as a witness in his own behalf; and notwithstanding his plausible showing as to the purchase of the farm, his payments thereon, and his reservation of the wheat when he reconveyed to Adam, no appellate court would have the right to send this case back with directions to a trial court and jury to believe that testimony.
Error is also assigned on the instructions given and refused. In one given, the trial court said that the burden was on the plaintiff to prove that he had a bona fide mortgage on the chattels claimed by him. Plaintiff finds fault with the use of the adjective “bona fide.” The criticism is overstrained. Read in connection with its associated text it meant no more than genuine, authentic, or real, not spurious. It was not disputed that, plaintiff held a document executed by his brother purporting to be a chattel mortgage, but it was alleged by plaintiff that it was given for a valuable consideration, and this was the issue in dispute between the litigants. The instruction contained no error.
Fault is also found with the court’s assumption of the truth of the evidence in one instruction (No. 10) and with its statement of the legal effect of such evidence. But when this instruction is read and considered with others given, it is free from serious fault. In another instruction, the jury were told that the burden of proving fraud was on the parties claiming it, and the fact that parties to a conveyance were related to eách other by blood or marriage did not establish fraud in the transfer, but—
“The fact of the relationship may be properly considered in connection with other evidence to impeach the transaction. And where a conveyance or transfer between near relatives is claimed to be in fraud of creditors the transaction will be’ more closely scrutinized than if it were between strangers, and it may be shown to be fraudulent by less proof than in cases where the relationship did not exist.”
Most of this is a fair statement of well-recognized principles of law. In Whitson v. Griffis, sheriff, 39 Kan. 211, 17 Pac. 801, it was said:
“Where the evidence shows that the mortgagor is a 'stepdaughter of the mortgagee, and that they lived together as members of one family, it is proper for the court to instruct the jury that such facts may be taken into consideration by them in determining the good faith of the transaction.” (Syl. 112.)
In Burton and Shoemaker v. Boyd, 7 Kan. 17, the widow attacked a deed which her deceased husband had executed to his brother, and this court declined to disturb a judgment resting, in part, on a verdict of a jury which had been instructed that “the relationship between [the brothers] is a circumstance which the jury may consider.” (p. 20.)
In Kennedy v. Powell, 34 Kan. 22, 7 Pac. 606, where the creditor of a husband sought to enforce an attachment on property which the husband had conveyed to his wife, this court said:
“It is true the relationship existing between the parties to the transaction afforded great opportunity to commit fraud, and their action in making the transfer should be closely scrutinized in order to see that it was honest, and that the consideration was, paid out of her separate estate, and not made to withdraw the property from the reach of the creditors of her husband. But the conveyance cannot be overturned by the mere suspicion that may arise by reason of the transfer of the husband to the wife when he was in failing circumstances.” (p. 25.)
In Dillon v. Bryant, 104 Kan. 380, 179 Pac. 318, it was said that mere relationship alone is not sufficient to show fraud, and other circumstances would have to be shown to sustain a verdict and judgment holding a chattel mortgage to be fraudulent. The rule is thus stated in 27 C. J. 641:
“The fact that the parties to a conveyance are related to each other either by blood or marriage does not of itself establish fraud in the transfer nor render it invalid, but the fact of relationship may properly be considered in connection with other evidence tending to impeach the transaction; and it is very generally stated that transactions between relatives will be closely scrutinized, because fraud is so easily practiced and concealed under such circumstances. In some states it is held that the transaction will be more closely scrutinized than if it was between strangers. So according to some decisions a transfer may be shown to be fraudulent by less proof than in cases where such relationship does not exist.”
Apparently the instruction quoted was framed from this excerpt from Corpus Juris, but both the instruction and the quoted excerpt, standing alone, are somewhat faulty. A fraudulent transaction must in all cases be established by a preponderance of the evidence; the fact of relationship is merely an item of evidence, not sufficient in itself, to be weighed in with the other evidence to make up the requisite preponderance on which a verdict and judgment may be founded. The “less proof” where parties are related must never be less than a preponderance. However, by various instructions, too long for repetition here, we think the jury could have been misled by the equivocal proposition involved in the criticised instruction.1 The other instructions given -have been carefully reviewed, but they contain no errors and require no comment.
Touching the instructions requested and refused, these were largely drawn in accordance with plaintiff’s main contention— that there was no evidence to support the defendant’s claim that the reservation of the wheat and the giving of the chattel mortgage were for the purpose of defrauding Adam’s creditors, and on the further erroneous assumption that the trial court and jury were bound to give full face value to plaintiff’s evidence. Thus, one of the instructions requested and refused read:
“VII. You are instructed that under the law and evidence in this case, the chattel mortgage in question is valid and plaintiff is entitled to recover the fair and reasonable market price of the one Jersey cow, the red cow, the roan cow, the Holstein cow, and the three calves, taken by the defendants by their attachment as of the day they were taken, and interest at the rate of six per cent per annum from that day.”
There seemed to be plenty of evidence that Alexander had once owned most of these mortgaged cattle and no reason to doubt that he sold them to Adam, but it did not follow that the chattel mortgage given thereon was bona fide. Other chattels, a horse and two cows, which were included in that mortgage, and which the sheriff did not seize, are still in the possession of Adam and the plaintiff has made no claim to them. There was also the evidence inherent in the fact 'that Alexander did not list this chattel-mortgage" note for taxation. Was it error to attach some evidential significance to that fact? We think not. The law requires that every person of full age and sound mind shall list his personal property for taxation as of the first day of March in each year and verify the accuracy thereof. Plaintiff’s statement to the assessor did not list the chattel-mortgage note, nor state his reserved ownership of the wheat crop, nor list the note-for $3,300 which he held against Adam for the reconveyance of the farm. Plaintiff made no explanation of this except that he did not swear to his statement to the assessor. He did not claim that these omissions from his tax statement were an oversight; he made no explanation of their omission. Under all the circumstances the jury might justly conclude, with the aid of the other evidence, that these items were omitted from plaintiff’s tax list because in an honest statement of his personal assets it did not occur to him to observe the pretense that his claim to the growing wheat crop and to his brother’s chattels covered by the mortgage were bona fide and that he should list them for taxation with the personal assets of which 'he was unquestionably the owner. We would not intimate that such omission from a tax statement would be sufficient in itself to defeat an otherwise honest claim, but the court can conceive of no reason why it should not be considered in evidence for what it may be worth under the circumstances.
A painstaking review of this entire case does not disclose any plain, palpable error which would justify a disturbance of the result reached in the trial court, and the judgment is therefore affirmed. | [
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•'The opinion of the court was delivered by
PoRTER, J.:
The Sheldon Petroleum Company brought this action to recover the value of certain casing used in drilling for an oil and gas well, and which it claims the defendants'converted to their use. The plaintiff prevailed, and Markus appeals.
Plaintiff is a corporation and maintains its principal office at Chicago, Ill. It was organized under the laws of South Dakota for the purpose of drilling a prospective well for oil and gas in Butler county, Kansas, the only business in which it ever engaged. The only property it possessed was purchased and used in connection with drilling the well, and aside from the lease consisted for the most part of the casing in controversy. G. B. Seldomridge, of Winfield, Kan., was the promoter; he acquired the lease; assigned it. to the company; and was active in the negotiations which resulted in the incorporation. He was one of the board of directors and a stockholder. The other incorporators were Warren Pease, of Chicago, an attorney, two clerks in his office, and Charles C. Lewis, of Arkansas City, Kan. Pease was chosen secretary and treasurer. George F. Harding, jr., and Sheldon Clark, both of Chicago, were the principal stockholders. Lewis, Seldomridge and Clark were the only directors who had had any experience in the oil business. Private business prevented Clark and Lewis from' giving their personal attention to the business of the company, and at a meeting of the board of directors in Chicago, Seldomridge was appointed field manager and directed to take charge of the business of drilling the well.
One of the principal questions -arises from the attempt of third parties dealing with a corporation, through one they claim to be its known and recognized agent, to. hold the corporation liable upon contracts made through him.
About February 1, 1918, Seldomridge. purchased from the Atlas Supply Company casing to the amount of $13,000, advising Mr. Pease of the price by telegram. Before Pease approved the sale or had received the bills, the casing was delivered on the ground. Sel-domridge also entered into oral contracts for drilling the well; bought the lumber and timber for a derrick; arranged for hauling the material and for the labor; and purchased from defendant Markus, who was in the business of selling casing, 4,000 feet of 2-inch pipe used in conveying water to the well. He referred Markus to the Atlas Supply Company with regard to the credit of the plaintiff, and Markus learned from the Atlas people that plaintiff was reliable and that Seldomridge was acting as the company’s manager or field agent. The plaintiff company had placed $5,600 in a Kansas bank in escrow to cover the contract for drilling the well to a depth of 2,700 feet, and when that depth was reached Seldomridge drew the money out of the bank and paid it to the contractor on debts of the company. The well proved to be a dry one, and Seldomridge went to Chicago, advised the company to that effect and it was agreed to have -the casing pulled from the well and sold as salvage.
Seldomridge first arranged to sell part of the casing to the defendant, The Empire Gas & Fuel Company, through one of its employees, and the casing was removed to the yards of that company at Augusta. Some question having arisen respecting the authority of the employee to make the purchase, it fell through. Sel-domridge then sold that casing to the defendant, Markus, who in turn sold it to the defendant, Wasson. Wasson ascertained that the Empire company still had it in possession, and he entered into negotiations which resulted in the sale to that' company.
The Empire company answered, in substance, that the plaintiff through its officers held Seldomridge out to the world as its duly accredited agent authorized in all respects to contract respecting material and supplies and to control and manage its business in Kansas; that after the well drilled by Seldomridge for the company proved to be unproductive, the company directed the abandonment of the drilling operations and the sale of'the salvage from the well; that Seldomridge sold part of it to defendant Markus, part to Fred Wasson of Wichita, and gave to them on behalf of the company bills of sale covering their several purchases of the material; and that the Empire company purchased the material from Markus and Wasson and paid full consideration therefor.
The plaintiff filed a verified reply denying the agency and authority of Seldomridge. The first sale of the casing was made in May to Markus, and the evidence tended to show that the amount paid was approximately its market value.
One complaint of error is that the court instructed the jury upon the theory that Seldomridge was not a known and recognized agent of the company. It is conceded that he was some sort of an agent, and in our opinion the evidence shows without question that he acted with apparent authority in the sale of the casing. Instead of the burden of proof being upon the defendants to show that his apparent general authority as agent was not a restricted one, we think the burden rested upon plaintiff to show the termination of the general authority of Seldomridge. In Townsend v. Railway Co., 88 Kan. 260, 128 Pac. 389, it was held:
“An act of an agent which is within the apparent but not within the real scope of his authority is binding upon the principal where otherwise loss would result to one who has in good faith relied upon such appearance.” (Syl. If 1.)
See, also, Manross v. Oil Co., 88 Kan. 237, 128 Pac. 385, where it was held that the effect of the presumption of law as to the power of the general manager of an oil company to enter into a contract “is to cast upon the corporation the burden of proving the contrary, that is, his lack of authority in the premises and that the person seeking to bind the corporation had knowledge of the restrictions.” (Syl. IT2.)
We think the facts, about which there can be no dispute, show that the company voluntarily placed Seldomridge in such a situation that a person of ordinary prudence, familiar with the nature of the particular business, was justified in presuming that the agent possessed the authority to dispose of the salvaged casing. In the Townsend case, supra, it was held:
“An act is within the apparent scope of an agent’s authority when a reasonably prudent person, having knowledge of the nature and usages of the business, is justified in supposing that he is authorized to perform it, from the character of the duties which are known to be entrusted to him.” (Syl. IT 2.)
In that case an instruction was held to be erroneous which charged that although the contract was within the apparent scope of the agent’s authority still, unless the company had previously ratified similar acts in excess of his powers, it would not be bound.
It is common knowledge that where such wells prove to be unproductive the casing is usually salvaged and sold unless the owners intend to drill other wells. Here, the sale of the salvage by the agent who had purchased the casing originally for the company, and who had exercised general authority with respect to the business, was not of an unusual or of an extraordinary character. In some of the instructions the court, we think, did not give sufficient weight to the rule that the principal is bound by. the contracts of an agent made within the apparent scope of his authority, regardless of limitations of the agent’s power, if the person dealing with the agent be ignorant of the limitations. (Aultman v. Knoll, 71 Kan. 109, 79 Pac. 1074, and cases cited in the opinion.)
In his deposition Pease, secretary and treasurer of the plaintiff company, told of the arrangement at the meeting in Chicago by which the business in Kansas was placed in charge of Seldomridge. While denying that the latter was general superintendent, he states that he “supposed Seldomridge was field manager.” He admits that Seldomridge sent him a questionnaire claiming deferred classification from the draft on the ground that he was the field manager of the corporation, which was engaged in a necessary enterprise, and that he, as secretary and treasurer, made an affidavit to be attached to the questionnaire to the effect that Seldomridge was the field manager. There was evidence showing that a similar affidavit was made by George F. Harding, jr., president of the company. Moreover, plaintiff is a foreign corporation, and was carrying on in Kansas the only business in which it was engaged and for which it was organized. Seldomridge was the only agent it had in Kansas and it is admitted that he was the field manager. Since the company had but one agent in charge of its business here, it is apparent that the public was compelled to rely upon his apparent authority as its constituted agent, and that the company must be regarded as holding him out as its general agent in Kansas with respect to its business.
“Third persons dealing with the agent of a foreign corporation, who has been doing business in a state other than that by which it was created, have the right to assume, in the absence of notice, that his authority extends to all such dealings as are necessary to carry on its business from day to day, and may act upon the apparent authority conferred by the principal upon the agent, and are not bound by secret limitations or instructions qualifying the terms of the written or verbal appointment, of which they had no knowledge.” (8 Fletcher Cyclopedia Corporations, § 5728.)
Here, the public knew no one connected with the plaintiff company except Seldomridge. In Scudder v. Anderson, 54 Mich. 122, it was held that the general agent and manager of a mining company is presumably empowered to sell its personal property. In the opinion in answer to the contention that sufficient evidence was not given of the agent’s authority to sell, it was said: “But if this property was movable property we can see no reason to doubt the power of a. general agent and manager to dispose of it. Purchases and sales of personality for use about mining premises must be of frequent occurrence, and would presumably be under the control of the geh-eral manager.” (p. 124.)
For the purpose of establishing that in fact Seldomridge’s authority was a limited and restricted one, plaintiff showed by the deposition of Pease that at the meeting in Chicago after the well proved to be unproductive, Seldomridge was instructed to return to Kansas, pull the casing, obtain bids and report to the Chicago office. Over the defendant’s objections, evidence was admitted consisting of letters from Pease to some of the defendants containing statements to the effect that Seldomridge had no authority to sell any part of the casing and that his authority was limited to receiving and reporting bids therefor. In view of the fact that these letters were not written until after the parties to whom they'were addressed had parted with the consideration in purchasing the casing, the statements with respect to the restrictions on the authority of Seldomridge were mere self-serving declarations. The burden rested upon the plaintiff to show that any secret instructions limiting the authority of Seldom-ridge had been communicated to the defendants. (2 C. J. 921, 924; Aultman v. Knoll, supra.)
The controversy here is between the principal and a third party, the latter relying upon the apparent authority, with the record dis closing the absence of notice to him of any limitation or restrictions upon the authority of the agent. In Aultman v. Knoll, supra, it was said: “but in the interpretation of an authority, in a controversy between the principal and a third person, apparent and not actual authority controls, when no limitation has been disclosed.” (p. 114.)
We are mindful of the rule that the question whether a reasonably prudent man, familiar with the business, wus' justified in assuming that the agent had authority to make such a contract, is generally a question for the determination of the jury. (Townsend v. Railway Co., supra.) But for the reason already stated that the public dealing with this corporation in Kansas knew no one connected with the plaintiff, except Seldomridge, it follows as a matter of law that the company must be regarded as holding him out as its general agent in Kansas with respect to its business. '
We need not, however, rest our decision upon the point stated. A second defense set up in the answer is that after the sale of the casing had been made by Seldomridge the company investigated the matter and ratified and approved the sales.
Sometime after Seldomridge had pulled the casing and made the sales, Pease sent T. A. Rial, with whom he had been associated in another oil company, to Kansas to investigate the matter of the sale of the casing. He carried letters of introduction to Seldomridge. On July 6 Rial wired Pease as follows:
“Mr. Seldomridge has sold six eight and ten inch casing at highest possible price saw several bidders for twelve fifteen and two inch but Seldomridge offers most of all. Hard to sell large size pipe here now. He offers three dollars for fifteen inch two fifty for twelve inch and ten cents for two inch. Nearest bid.was two fifty for fifteen inch or fifty cents less. He sold six eight and ten inch from ten to forty cents higher than best bid today. Cannot sell rig or tank to anyone other than Seldomridge. His offer is seven hundred for •rig and tank. He says he will pay for all about fifteenth. I really advise selling to him as this is best can be done. Reply by wire to Cleveland Oklahoma.”
On the same day Pease answered by wire, authorizing Rial to accept Seldomridge’s offer on the pipe and rig as quoted.
On July 8 Rial sent Pease an itemized statement of the sales account of the casing and rig, in which he said:
“. . . I did the best I could in selling this stuff. Seldomridge had sold to the Empire the 10, 8 and 6 inch casing and he sold it well as there is plenty of casing on hand down in that country just now at least. He promised to have to you all money by the 15th. He has closed his deal down at Choloco and is sending the stuff he bought down there. I found him to be a clean fellow with a good record around Winfield and he did all in his power to assist me in getting other bids on your goods. . . .”
On the day following Pease wrote Seldomridge he trusted “that the matter will now proceed smoothly along the lines of your telegram and Rial’s statement of the sale of the stuff and that there will be no further trouble in getting the checks here.” In the statement of the sales account sent by Rial to Pease, the latter was informed that the secondhand casing was sold to the Empire company by Seldomridge, the price at which it was sold, also the amount sold direct to Seldom-ridge by Rial, the letter closing, “Seldomridge agrees to have all money in to you by July 15, 1918.”
Pease testified:
“Q. Did you do anything after this sale until the Empire— A. Yes, after we couldn’t get anything out of Seldomridge, we wrote to the Empire, wrote them two or three letters.”
Both on July 24 and July 27 Pease wrote to'the Empire people stating that about the first of July, Seldomridge reported that he had sold certain casing to the Empire company, describing it. In substance it was stated in each of these letters that Seldomridge had advised the plaintiff that a check would be forthcoming for the amount due from the Empire people on July 15, “but we have not heard since from the matter and do not get satisfactory advice from Seldom-ridge in this regard.” In one of the letters it was stated Seldomridge “had been authorized by this company to get bids on this stuff, but it seems he took the authority to sell it without submitting bids.” Pease wrote on July 24 to Seldomridge himself stating, “We cannot understand why the Empire people have not paid the amount due from them. ... I have therefore written the Empire people direct asking for immediate remittance. . . . Rial’s report was that you agreed with him to have all money in my hands by July 15.”
, It was in these letters written after July 15 that Pease attempted to convey notice to the defendants to the effect that the authority of Seldomridge in the first instance had been limited to receiving bids. There was no evidence offered to show that any notice to this effect came to the defendants prior to the time in which they parted with the consideration.
Pease himself testified that the company trusted Seldomridge until they became suspicious of him in July, after the time in which he had agreed to send the money or checks for the casing; that the company sent Mr. Cornelius to Kansas to “run Seldomridge to earth. We had come to the conclusion that we had been deceived.” There was also evidence tending to show that the company brought a suit and attached or attempted to attach property of Seldomridge for the purpose of realizing upon a part of this'indebtedness, if not all. Sel-domridge in the meantime had gone to Colorado Springs. The company had a fugitive warrant issued for his arrest, charging him with the larceny of the casing, and got a requisition for his arrest in Colorado. The governor of Colorado refused to grant extradition, and it appears that about two months thereafter Seldomridge committed suicide.
We think the evidence shows conclusively that Pease, acting for the plaintiff company, ratified the act of Seldomridge when it was supposed the latter had extended credit to the Empire company for the casing, and that afterwards, when it learned that Seldomridge had collected the money, it endeavored to collect the proceeds from Seldomridge himself, sending an agent to Kansas for that purpose, and now relies upon letters written long afterwards to the defendants attempting to restrict and limit the authority of the general agent.
We have here, then, a case where the principal seeks to appropriate to himself the advantages of the sale made by one he claims exceeded his authority as agent, and at the same time repudiate the obligations incurred by the same act of the agent. In Aultman v. Knoll, supra, it was ruled—
“A principal cannot appropriate to himself all the advantages of his agent’s unauthorized conduct and repudiate its obligations. Ratification must include the entire act.” (Syl. |f 7.)
In that case it was held further that—
“When a principal adopts the unauthorized act of his agent, and brings suit to secure its benefits, he cannot escape its liabilities by claiming ignorance of some of the facts. He is obliged to inform himself of the scope of the unauthorized performance, or be bound to the same extent as if he had done so.” (Syl. IT 5.) -
“Proof of ratification includes proof of agency and authority, and may be made under a pleading charging the ratified act to be that of the principal.” (Syl. ¶6.)
To the same effect see Babcock v. Deford, 14 Kan. 408; Ehrsam v. Mahan, 52 Kan. 245, 34 Pac. 800.
For the reasons stated, it follows that the case will be reversed and the cause remanded with directions to enter judgment for the defendant, Markus. | [
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The opinion of the court was delivered by
Mason, J.:
Edwin A. Austin sued the Prudential Trust Company for his services as an attorney (and for expenses incurred) in proceedings for the enforcement of a bond given to such company as trustee for a number of individuals. He recovered a judgment, and the company appeals.
In 1917 the North American Hotel Company, a corporation owning hotels in different places, obtained subscriptions of a number of residents of Topeka to its capital stock by an agreement that the money paid therefor should be used in the construction of a hotel in that city. ' Later it received permission to use this fund for other purposes, giving a bond, running to the Prudential Trust Company as trustee for the Topeka subscribers, that it would complete the hotel within a time stated. The hotel was not built, and the plaintiff, with the permission of the Prudential company, in its name brought an action upon the bond to recover damages for this breach of the contract. The action was removed to the federal court, where a settlement was effected which was embodied in a judgment, as a result of which the amount adjudged was paid to the trustee. The services and expenses for which recovery was had in the present action are those rendered and incurred in connection with that proceeding.
All but four of the Topeka subscribers to the stock in the hotel company agreed to exchange it for stock in a new corporation which they organized under the name of the Kansas Hotel Company.. The new company was made a defendant in this action, together with the subscribers who did not participate in the agreement. No judgment was rendered against any one except the Prudential Trust Company, and it will be hereinafter spoken of as the defendant.
1. -The defendant signed a writing authorizing the plaintiff to bring in its name the action on the bond, and received an undertaking for its protection against loss on account thereof signed by three of the Topeka subscribers to the North American stock who were parties to the agreement for its exchange for stock in the Kansas Hotel Company. The plaintiff contends that these writings, in connection with the evidence relating to them, show an employment of him by the defendant to bring the action, rendering it personally liable to him for the reasonable value of his services, for which it would in turn, have a claim against the funds of the trust, being protected against ultimate loss by the undertaking referred to. The defendant asserts that the effect of the writing it signed, in view of the evidence concerning the transactions of which it was a part, did no more than to authorize those for whom it was trustee to maintain an action in its name for their benefit, involving no liability on its part for the payment of an attorney’s fee. The case turns largely upon the question which of these contentions is correct.. The language of the writings referred to is as follows:
“In the District Court of Shawnee County, Kansas.
The Prudential Trust Company, Plaintiff, v. The North American Hotel Company and the American Surety Company, Defendants.
“We the undersigned hereby bind ourselves to The Prudential Trust Company to pay all costs and attorney fees, and all loss or damage, which may result to the Prudential Trust Company by reason of the commencement and prosecution of the action above entitled on the bond of The North American Hotel Company and the American Surety Company, to construct the Hotel at the North East Corner of 9th and Kansas Avenue, City of Topeka, Kansas. Thomas Page,
Thomas Page Milling Co.,
By Thomas Page,
PRANK P. MACLiENNAN.”
“In the District Court of Shawnee County, Kansas.
The Prudential Trust Company, Plaintiff, v. The North American Hotel Company, and The American Surety Company, Defendants.
“In consideration of the bond of Thomas Page, et al., The Prudential Trust Company hereby authorizes the commencement and prosecution of the action above entitled on the bond of said defendants to this Company for the construction of the Hotel at the North East Corner of 9th and Kansas Avenue, City of Topeka, Kansas, by Edwin A. Austin and such other lawyers as he may associate with him. Dated July 15th, 1919.
The Prudential Trust Company,
by S. E. Cobb, President."
The document signed by the defendant is sufficiently ambiguous to justify resort to a consideration of the attendant circumstances for its interpretation. While it might seem unreasonable for the defendant intentionally to bind itself individually for the payment of an attorney’s fee with respect to litigation in which it had no personal interest, the rule is that “when a trustee employs an attorney in the execution of his trust, such attorney must look to the person employing him individually for his payment, and can have no claim on the trust fund” (6 C. J. 734), the trustee of course being entitled to reimbursement from the trust estate (39 Cyc. 339; see, also, 22 Columbia Law Review 527). Ordinarily one who renders services to a trustee, in execution of the trust, creates a liability only against him personally (26 R. C. L. 1316-17) and in order to absolve the trustee from personal liability upon his contract an express agreement to that effect is necessary (39 Cyc. 333). There is in the writing under consideration no explicit exemption of the trustee from personal liability, and the giving of an indemnity bond does not necessarily imply it.
Some of the evidence tended to support the defendant’s claim that no employment of the plaintiff by the defendant was contemplated by the parties. For instance, in a letter written by the plaintiff to a representative of the Kansas Hotel Company refusing an offer of a check of the trustee for $1,000 and his expenses, he said: “You, of course, realize that no one was personally responsible to me for any fee, or even for a refund of my necessary disbursements. There was no trust fund from which either could be paid, unless my .services should be successful, and the fund sued for recovered. I went ahead and advanced my own costs and expenses without any guarantee of repayment. The two suits which I brought, finally produced results which everybody must concede are adequate and should be gratifying to the beneficiaries. Without deducting any fee or reimbursement, I turned over the entire proceeds, relying upon the worthy gentlemen who would have charge of the adjustment of my compensation to do the right thing.” The language is open to various interpretations, but putting upon it the most unfavorable construction for the plaintiff it was merely evidence to be considered in arriving at the actual situation. It did not work an estoppel or otherwise conclude the controversy. This is also true of the fact that the plaintiff first presented his bill for services and expenses to the Kansas Hotel Company; a witness for the defendant testified explicitly that the plaintiff was not employed by the company to bring the suit on the bond. In his petition in the present case the plaintiff alleged that his claim ought to be paid out of the trust fund and should be made a charge upon it. Whether or not this was so as a matter of law it was not necessarily inconsistent with a personal demand against the trustee. Nor did it, as the defendant claims, prevent the action being tried as one for the recovery of a personal judgment. Nor is any greater effect to be given the plaintiff’s testimony that he was charging for his services against the trust fund — that he asked a personal judgment against the defendant and that it be paid out of the money recovered in the action on the bond. The trust fund would be the ultimate source of payment although the plaintiff was required to look solely to the defendant, and the defendant to look to the fund for reimbursement.
This testimony was developed in the cross-examination of the plaintiff:
“Now, neither Mr. Cobb nor any other officer of the Prudential Trust Company had approached you for your advice or to employ you in any matter, had they? A. No, sir.
“Q. And you must have been in communication with somebody else about the affairs of this North American Hotel Company, weren’t you? A. No, sir; not with reference to the commencement of this suit.
“Q. What were you talking with them about? A. Oh, I had all these other things that you have already spoken about, that you wanted to make sure to eliminate, as representing the Kansas Hotel Company, which was the assignee of nearly all of the stockholders of the North American Hotel Company.
“Q. Hadn’t you been in consultation with some of the heavy subscribers? A. Why, with Mr. MacLennan mostly, as president of the Kansas Hotel Company.
:Q. Now, you people had been holding consultations together with refer ence to this situation, hadn’t you? A. Yes, there had been a good many conferences.
“Q. Yes, and you people had concluded finally, did you, that suit ought to be brought for the protection of these people with whom you had been in consultation. Is that right? A. Well, there wasn’t any consultation with reference to the commencement of this suit. I noticed in the paper of a lawsuit and attachment had at Eldorado, brought on July 14th, and I immediately asked Mr. Cobb for this authority and effected the bond to indemnify him.
“Q. Do you hold any stock in the North American Hotel Company, or did you? .A. No, sir.
“Q. You weren’t interested personally, then? A. Not at that time.
“Q. No. Do you mean to say, then, as an attorney you went to the Prudential Trust Company and tried to break into a lawsuit? A. Well, there were fifty or sixty people here in Topeka interested in the situation, and Mr. MacLennan and the people associated with him in the organization of the Kansas Hotel Company, assumed, perhaps gratuitously, to make some effort in behalf of everybody.
“A. And I was engaged in representing the Kansas Hotel Company, and, thereby, to represent all of the stockholders, and I tried to do everything that I could to that end.
“Q. Therefore, you went, as an attorney and representative of some special stockholders? A. No, sir; I did not.
“Q. To get permission to bring this suit, didn’t you? A. No, sir; I went there as representing everybody — everyone of those stockholders.
“Q. Then you were going as representative of the subscribers to that fund— A. Yes, sir.
"Q. To the Prudential Trust Company and requesting, on behalf of these men that you represented, that you might bring a suit in the name of the Trust Company? A. The Trust Company was named as trustee of all those people, and I went to Mr. Cobb as such trustee and asked that he bring this suit in behalf of the people for whom he was trustee.
“Q. Did you request that he authorize you to use the name of the Trust Company to bring this suit for the men you represented and had been assisting for two years in this matter? Didn’t you? A. Well, that is another way of stating that I wanted to bring suit in the name of the Prudential Trust Company as trustee for all of the stockholders; yes.”
The court is of the opinion that neither this nor any other part of the evidence conclusively shows that the effect of the writing was merely to authorize the beneficiaries through their attorney, the present plaintiff, to use the name of the trustee in the prosecution by them of an action on the bond; and that the question whether it should be given that effect or regarded as an employment of the plaintiff by the trustee to prosecute such action as his attorney was one to be determined by the triers of the facts.
The defendant asserts that it had no duties to perform as trustee , —that the trust was a passive or dry one — and therefore that it was not subject to personal liability. The plaintiff contends that the trust was an active one, and in support of the contention calls attention to a provision of the bond that no right of action thereon should accrue to, or for the use and benefit of, anyone other than the obligee therein named. We do not regard this language as meaning that the trustee rather than the beneficiaries should enforce the bond, but merely that no third person — a stranger to the contract— should have the right to do so. The beneficiaries rather than the trustee would seem entitled to decide the course to be pursued for the protection of their interests — to say whether and when and where an action should be brought and what settlement should be made. It is said that the beneficiary has a right to the use of the name of the trustee for the purpose of bringing a legal action without express authorization (39 Cyc. 446, 447) and that where the trustee has been indemnified he will not be permitted to interfere in its conduct (449). See, also, 2 Perry on Trusts and' Trustees, 6th ed., § 520. But .assuming the trust to be a passive one, this would not relieve the defendant from personal liability if it employed the plaintiff to bring the suit. Indeed if it acted beyond its authority in the matter, that would appear to afford an additional ground for holding it liable.
2. Complaint is made of the rejection of a letter written by the plaintiff on April 7, 1919, to the North American Hotel Company in behalf of subscribers to its stock represented by him, which is asserted to have a bearing on the question of the value of his services and the manner in which they were performed. We do not regard it as relevant to that issue. Other documents rejected were apparently offered to show that the plaintiff during the pendency of the action on the bond acted as attorney and agent for the North American Hotel Company in other matters. No issue of unfaithful conduct was presented by the pleadings, and the matters referred to do not appear to be so related to the bond action as to involve inconsistency of attitude.
Complaint is made of an instruction that if the plaintiff was employed by the defendant the giving of the indemnity bond would not change their relations, and of another that a recovery might under some circumstances be had although no express authority was given to bring the action. We regard the first as correct and the second as at least nonprejudicial, inasmuch as the jury found specially that the defendant by its president employed the plaintiff to institute the action in question, and that the employment continued throughout the litigation. For the latter reason no material error was committed in refusing to instruct that no recovery could be had if the plaintiff simply asked and received permission to bring the action in the name of the defendant. A requested instruction that no recovery could be had if it was agreed that the suit was to be brought in the name of the defendant for the benefit of others was properly refused.
The trial court refused to submit the questions by whom the plaintiff was employed when he advised bringing the action on the bond, and whether the same employment continued through the litigation. We think they were sufficiently covered by the questions the answers to which have already been stated.
The questions whether the plaintiff performed services in obtaining a settlement with the North American Company, and if so what they were reasonably worth, having been fully tried out, and any payment rightfully made by the trustee to him being ultimately chargeable against the trust fund, the controversy over his right to look to the defendant personally is largely procedural. The defendant suggests, however, that the indemnity bond does not give him full protection, because in settling with the beneficiaries the reasonableness of the amount of the fee awarded may be challenged by them. Perhaps the fact that the beneficiaries were made parties to the present action would preclude this. It is further suggested that not all the persons named as defendants were served with summons, but the fact appears to be otherwise.
The judgment is affirmed. | [
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Green, J.:
Steve Brigham appeals from a summary judgment granted in favor of Dillon Companies, Inc., (Dillons) in Brigham’s retaliatory demotion claim. On appeal, Brigham contends that the trial court inappropriately granted summary judgment because Kansas law either recognizes or should recogriize as an actionable tort a demotion in retaliation for asserting a workers compensation claim. We disagree and affirm the judgment of the trial court.
Brigham worked at a Dillons’ grocery store. He was promoted to grocery store manager. When he later began experiencing physical difficulties with his arms, he filed a workers compensation claim. He later had surgeiy to correct the abnormality. When Brigham returned to work after his surgery, he learned that he had been demoted to frozen foods manager.
Brigham sued Dillons, claiming that he had been demoted to the frozen foods department in retaliation for fifing his workers compensation claim. Dillons moved for summary judgment, arguing that Brigham had failed to state a claim upon which any relief could be granted. In holding that the Kansas appellate courts have not recognized the tort of retaliatory demotion, the trial court stated:
“The Kansas appellate courts have not recognized retaliatory demotion as stating a cause of action in tort. In consideration of the rationale as stated above and the indication that no other jurisdiction has recognized such actions the court finds that the Kansas appellate courts will defer the conflicting public policy issues to the Kansas legislature. Plaintiff has not stated a claim upon which relief can be granted in this state.”
Brigham argues that a demotion in retaliation for asserting a workers compensation claim is encompassed in the tort of retaliatory discharge. Because this issue presents a question of law, our standard of review is unlimited. See Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
Several exceptions exist to the employment-at-will doctrine. One exception is the public policy theory adopted by the Kansas courts in Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981). In determining that a discharge of an employee in retaliation for filing a workers compensation claim violated public policy and constituted a tort, the Murphy court stated:
“The Workmen’s Compensation Act provides efficient remedies and protection for employees, and is designed to promote the welfare of the people in this state. It is the exclusive remedy afforded the injured employee, regardless of the nature of the employer’s negligence. To allow an employer to coerce employees in the free exercise of their rights under the act would substantially subvert the purpose of the act.” 6 Kan. App. 2d at 495-96.
Brigham focuses on this language in his appellate brief as support for his. position that a retaliatory demotion is included in the tort of retaliatory discharge. He argues that if the Murphy court .had intended to limit the tort to dismissals it would have used more ■limiting language in its opinion. But Brigham ignores the language contained in Murphy which states: “Under the facts and circumstances of this case, it is held that the discharge of an employee in retaliation for filing a workmen’s compensation claim is actionable at law and may support an award of both actual and punitive damages.” (Emphasis added.) 6 Kan. App. 2d 488, Syl. ¶ 7. Moreover, in recently stating that only two public policy exceptions exist to the employment-at-will doctrine, our Supreme Court stated:
“An employee-at-will is just that. He or she may be terminated without cause. The only exceptions thereto arise from public policy. An employee-at-will may not be terminated in retaliation for: having filed a workers compensation claim, Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981), or for ‘whistle-blowing,’ Palmer v. Brown, 242 Kan. 893, 752 P.2d 685 (1988).” (Emphasis added.) Dickens v. Snodgrass, Dunlap & Co., 255 Kan. 164, 176-77, 872 P.2d 252 (1994).
This court is duty bound to follow the law as established by our Supreme Court decisions, absent some indication that the Supreme Court is departing from its previously expressed position. Batt v. Globe Engineering Co., 13 Kan. App. 2d 500, 507-08, 774 P.2d 371, rev. denied 245 Kan. 782 (1989). In discussing the requisites for declaring the existence of public policy, our Supreme Court stated:
“Before courts are justified in declaring the existence of public policy, however, ‘it should be so thoroughly established as a state of public mind so united and so definite and fixed that its existence is not subject to any substantial doubt.’ ” Palmero. Brown, 242 Kan. 893, 897, 752 P.2d 685 (1988) (quoting Noel v. Menninger Foundation, 175 Kan. 751, Syl. ¶ 4, 267 P.2d 934 [1954]).
Our Supreme Court has not indicated that it is departing from its previously expressed public policy position: that an essential element in establishing a case of retaliatory discharge requires the employee to show that he or she has been terminated. See Dickens v. Snodgrass, Dunlap & Co., 255 Kan. at 176-77.
Brigham cites to numerous cases in which Kansas appellate courts have expanded the factual circumstances under which this state will recognize a cause of action for retaliatory discharge. See Coleman v. Safeway Stores, Inc., 242 Kan. 804, Syl. ¶ 3, 752 P.2d 645 (1988) (employer may not discharge employee for excessive absences which are the consequence of a work-related injury; no workers compensation claim had yet been filed); Marinhagen v. Boster, Inc., 17 Kan. App. 2d 532, 541-42, 840 P.2d 534 (1992), rev. denied 252 Kan. 1092 (1993) (efnployer may not fire employee in retaliation for spouse’s application for workers compensation benefits). Our appellate courts’ expansion of the tort in these cases dealt with employee discharges. None of these cases or the other cases cited by Brigham offer support for his position that the tort of retaliatoiy discharge has been extended to encompass a claim of demotion in retaliation for asserting a workers compensation claim. Consequently, Brigham’s argument must fail.
Finally, as one federal court has observed, the expansion of tort remedies for actions short of termination could lead to unwarranted results:
“Recognizing a retaliation tort for actions short of termination could subject employers to torrents of unwarranted and vexatious suits filed by disgruntled employees at every juncture in the employment process. And why stop at demotions? If, as [the plaintiff] argues, a demotion raises the same policy concerns as a termination, so too would transfers, alterations in job duties, and perhaps even disciplinary proceedings. The potential for expansion of this type of litigation is enormous.” Ludwig v. C & A Wallcoverings, Inc., 960 F.2d 40, 43 (7th Cir. 1992) (Illinois tort of wrongful discharge does not include retaliatory demotion).
Affirmed. | [
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|
Gernon, J.;
This appeal involves a shareholder derivative suit. A jury trial resulted in a $975,000 verdict on behalf of the plaintiff, Henry Boyle. This verdict was reduced to $533,500 by the trial judge. The reduction of the verdict is but one of several issues raised in this complex and fact-sensitive case.
Mega Circuits, Inc., (Mega) makes and sells printed electronic circuit boards used in computers and other electronics. Mega was started in 1984 by Kevin Gassen, Mark Gassen, Patrick Boyle, and Henry Boyle. The Gassens were actively involved in the business. Henry Boyle was involved until 1985, when he left to pursue other interests. Patrick Boyle was never involved in the day-to-day operation of the companies.
Mega was seemingly always under-capitalized. It borrowed $250,000 as start-up money. In addition, in 1987, Mega was penalized for failing to pay employee withholding tax. Needing capital, Mega negotiated an agreement with AMT Development.
AMT Development is a partnership. The partners include William Kent, Barbara Kent, and Judith Harries. William Kent and William Harries also control a company named Applied Micro Technology, Inc., (AMT). AMT was a principal customer of Mega.
In 1987, Mega, in exchange for $75,000 from AMT Development, agreed to transfer 50 percent of its stock to AMT Development and to allow William Kent and William Harries to become officers and directors of the corporation.
After the agreement with AMT Development, AMT Development owned 50 percent of Mega and the Gassens owned 38 percent. The balance of the stock was owned by other minor shareholders, including Henry Boyle. At the time of trial, Boyle owned 10 percent of Mega. After the transfer, Mega’s board of directors consisted of Harries, Kent, and the two Gassens.
The record contains an uncontroverted statement that on the day Harries and Kent bought into Mega, Harries stated, “[W]e’re going to F the small shareholders.”
Almost immediately, Mega was called upon to extend special considerations to AMT, both as to price and as to delivery times.
After AMT Development acquired stock in Mega, AMT accounted for more than 25 percent of Mega’s gross sales. This percentage is presumably even higher, given the pricing considerations and undercharges AMT received from Mega.
AMT was paying lip per square inch for circuit boards purchased from Mega before the buy-in. After the buy-in, the charge increased to approximately 12p per square inch in 1988, and eventually reached 20p per square inch in 1991. While a considerable increase in price, the record reveals that other customers were paying twice as much or more for similar orders. In addition, AMT demanded early delivery on its orders but was unwilling to pay current accelerated delivery charges.
Mega’s financial situation continued to deteriorate. In 1990, Mark Gassen resigned from Mega, in part due to health problems. His position on the board was never filled, thus giving Kent and Harries effective control of the board.
In 1991, Kevin Gassen discussed with Harries the possibility of declaring bankruptcy. Kevin Gassen then sought the advice of an attorney and learned that Mega’s preferential treatment given to AMT was illegal. Gassen then conducted an audit of the company. After reviewing the audit, Kevin Gassen sent Kent and Harries a letter in December 1991, informing them of the nature and extent of the damages suffered by Mega due to the preferential treatment given to AMT. Their response was that in February 1992, the board of Mega voted 2 to 1 to fire Kevin Gassen due to “poor management.”
Henry Boyle becamé aware of the preferential treatment given to AMT after the audit. Boyle testified that at no time did he authorize such treatment.
Henry Boyle and Kevin Gassen filed suit in 1993 against Harries, Kent, AMT, and AMT Development. They alleged breach of fiduciary duty, restraint of trade, and unjust enrichment. Kevin Gas-sen later withdrew from the suit. Only the breach of fiduciary duty claim was allowed to be considered by the jury.
After hearing the testimony of several witnesses, the jury found the existence of a breach and returned separate verdicts of $487,500 against Harries and $487,500 against Kent. The trial court combined these two amounts for a total verdict of $975,000 and, then, reduced the total damage figure to $533,500 to reflect its pretrial order. The trial court then allocated that amount between Harries and Kent, so they each were assessed $266,750.
Afterward, Harries and Kent filed a motion to stay execution of the judgment while the post-trial motions were pending. The court granted the motion upon the condition that they post a supersedeas bond in the amount of $275,000. Harries and Kent then filed a motion seeking judgment notwithstanding the verdict, or, in the alternative, a new trial, or, in the alternative, an alteration of the judgment, but the court denied the motion. The court also directed that the supersedeas bond should be altered to name Henry Boyle as the beneficiary. The parties appeal several of the court’s rulings.
Limitation of Damages
Boyle argues that it was error to limit compensatory damages to the amount established in its pretrial order.
K.S.A. 60-216(a) provides that a pretrial order controls the future course of the action “unless modified at the trial to prevent manifest injustice.” This statute bestows broad discretionary power upon the trial courts. State Farm Fire & Cas. Co. v. Liggett, 236 Kan. 120, 124, 689 P.2d 1187 (1984). Consequently, “[t]he admission of exhibits not previously disclosed or the admission of the testimony of witnesses not previously disclosed is discretionary with the trial court. Discretion is abused only when no reasonable [person] would take the view adopted by the trial court.” 236 Kan. at 124.
In Burkhart v. Philsco Products Co., 241 Kan. 562, 738 P.2d 433 (1987), the Supreme Court noted the purpose of a pretrial conference:
“ ‘The pre-trial conference and the order entered thereon are an important part of the procedural process. They are provided to acquaint each party in advance of trial with the factual contentions of the opposite parties as to matters in dispute. The opportunity for maneuver and surprise during the trial is reduced. As a result of the pre-trial conference all parties are better able to prepare their testimony on the issues to be tried.’ ” 241 Kan. at 565 (quoting Tillotson v. Abbott, 205 Kan. 706, 709, 472 P.2d 240 [1970]).
The pretrial order indicates Boyle was asking for $3,600,085 in total damages. Of that amount, $533,500 was claimed to be damages for undercharges to AMT by Mega. Boyle moved to amend the total damages figure to $4,104,885.22 on the day of the trial to reflect new evidence. The court denied the motion and limited the recovery to the amount claimed in the pretrial order. However, the court allowed Boyle’s expert to testify as to the new evidence and the revised amount of damages at trial. The new evidence consisted of records which had long been covered by a discovery order but had been secreted in the trunk of a car belonging to one of the defendants until a few days before trial.
The jury returned separate verdicts against Harries and Kent of $487,500 each. The trial court aggregated the amounts and then reduced the total to $533,500 to reflect its pretrial order, assessing $266,750 to each defendant.
Generally, our appellate cases support the trial judge’s discretion in allowing an amendment to a pretrial order. See Brown v. United Methodist Homes for the Aged, 249 Kan. 124, Syl. ¶ 4, 815 P.2d 72 (1991); Herrell v. Maddux, 217 Kan. 192, 194, 535 P.2d 935 (1975); Robertson v. Ludwig, 12 Kan. App. 2d 571, 582, 752 P.2d 690, rev’d on other grounds 244 Kan. 16, 765 P.2d 1124 (1988).
In Brown and Robertson, the courts refused to allow new legal theories to be amended to the pleadings because that would have prejudiced the plaintiffs. Here, Boyle was attempting to include newly discovered data to adjust his damage computations, not a new cause of action which Harries and Boyle would be unprepared to defend against. Those cases are also distinguishable because the juries were not allowed to even consider the new legal theories, while in the present case the court did allow the jury to hear the new evidence on damages.
In Herrell, the trial court granted the defendant’s request to amend the pretrial order at the conclusion of trial to include the affirmative defense of contributory negligence. 217 Kan. at 193. The Supreme Court found the trial court abused its discretion in permitting the amendment because the defendant did not show any obvious injustice from the failure to claim the defense. The Supreme Court further found that by the trial court allowing the amendment, the plaintiff was denied the opportunity to address the issue during the trial. 217 Kan. at 195.
We conclude that under the circumstances here, the trial court should have allowed the amendment to the damages as reflected by the new data obtained just 3 days before trial and corroborated by Boyle’s expert witness.
Generally, a trial court has the authority to compel the parties to agree to the undisputed facts at a pretrial conference; however, “the trial court should not attempt to decide disputed issues of fact.” In re Estate of Countryman, 203 Kan. 731, 737, 457 P.2d 53 (1969); see Connell v. State Highway Commission, 192 Kan. 371, 375, 388 P.2d 637 (1964).
The jury considered the testimony of the parties and reached its own determination of damages on March 25,1994. The court, however, filed a pretrial order on April 1, 1994, 7 days after the conclusion of the trial. As the measure and amount of damages depended upon the evidence adduced at trial, the court’s order in effect constituted a judgment improperly limiting the jury’s factual determination.
Contemporaneous Objection
Boyle next argues that Harries and Kent cannot challenge the expert testimony on the revised damages calculation because they did not raise a specific and timely objection to this evidence. Harries and Kent contend they did raise a contemporaneous objection to the new evidence on damages.
Generally, “[i]n order to raise the admissibility of evidence as an issue on appeal, the record must show a timely and specific objection. K.S.A. 60-404. If a continuing objection is lodged, failure to object when the evidence is subsequently readmitted does not bar raising the issue on appeal.” McKissick v. Frye, 255 Kan. 566, 582, 876 P.2d 1371 (1994). Furthermore, a “variance between pleading and proof is waived if the opposing party does not make timely objection.” Forster v. Fink, 195 Kan. 488, 492, 407 P.2d 523 (1965).
Our reading of the record leads us to conclude that there was a sufficient continuing objection to the admission of new damages evidence.
Challenge to Jury Verdicts
Boyle’s final contention on appeal is that Harries and Kent cannot challenge the individual verdicts rendered by the jury because they did not object to the court’s jury instructions. Harries and Kent do not dispute their failure to object to the jury instructions on damages but contend this failure does not prevent them from challenging the determination of liability as a matter of 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 distincdy the matter to which he or she objects and the grounds of his or her objection unless the instruction is clearly erroneous.”
The only instruction to the jury on damages was Instruction No. 18, which stated: “If you find that Mega Circuits, Inc. was damaged as alleged then you must award plaintiff such sum as you believe will fairly and justly compensate Mega Circuits, Inc. for the damages you believe were sustained as a result of the occurrences alleged.”
The court did not instruct the jury on whether liability against Harries and Kent was assessed individually or jointly and severally, nor did the parties request an instruction on this determination.
During the hearing on jury instructions, Boyle’s counsel stated, “The balance of the verdict form appears to be fine.” Harries and Kent never mentioned the verdict form at this hearing.
The question of joint and several liability is part of Kent and Harries’ cross-appeal. Under the circumstances here, Kent and Harries are not barred from challenging the court’s decision to assess individual liability.
CROSS-APPEAL
Inconsistent Judgment
Harries and Kent argue that the jury’s special findings are contrary to the general verdict and to Boyle’s claim of breach of fiduciary duty. Harries and Kent contend that the special findings absolve them of liability in that the findings support their statute of limitations defense.
Boyle counters by claiming that Harries and Kent have waived the statute of limitations defense because they did not raise it in a timely manner.
(a) Statute of Limitations Defense
Boyle filed this action on July 12, 1993. The defendants answered on July 28,1993, but did not affirmatively assert the statute of limitations. Boyle filed an amended petition on October 29, 1993.
At the pretrial conference in February 1994, the defendants moved to amend their answer to raise the statute of limitations defense and file an answer to the amended petition.
The defendants sought to have an instruction on the statute of limitations, which was objected to, and the court then informed counsel that special questions would be submitted to the jury on the statute of limitations and that, depending on the responses, the court would rule as a matter of law.
Although Harries and Kent may not assert the statute of limitations, the general verdict must still be reconciled with the special findings. After the evidence was presented, the court instructed the jury that Harries and Kent were alleged to have breached their fiduciary duty in following manners:
“A. Failure to pay for services and products received from Mega Circuits, Inc. for AMT.
“B. Paid less than fair market price for products and services from Mega Circuits, Inc. for AMT
“C. Took unfair advantage of their position to preempt work of other customers in favor of AMT, Inc.
“D. Failure to act towards Mega Circuits, Inc. as reasonably prudent directors would act and by their self-dealing, harmed Mega’s profitability.”
After deliberating, the jury returned general verdicts against Harries and Kent for breaching their fiduciary duty to Mega’s shareholders. The jury also found in answers to special interrogatories that Mega first sustained substantial injury from the breach of fiduciary duty in March or April 1987. The jury further found that Mega could not reasonably have ascertained the injury until October 1991.
K.S.A. 60-249(b) provides in relevant part:
“When the general verdict and the answers are harmonious, the court shall direct the entry of the appropriate judgment upon the verdict and answers. When the answers are consistent with each other but one or more is inconsistent with the general verdict, the court may direct the entry of judgment in accordance with the answers, notwithstanding the general verdict or may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial.”
See also Knape v. Livingston Oil Co., 193 Kan. 278, 280, 392 P.2d 842 (1964) (reviewing general principles involving special findings and general verdicts).
Read as a whole, we find that the jury believed that Harries and Kent caused substantial injury to Mega when they became directors in 1987. The jury also found that Mega could not ascertain the fact of substantial injury until October 1991. On their face, these findings appear to be consistent with one another.
The findings are also consistent with the general verdict. “In considering special findings the court is not permitted to isolate one and ignore others, but all are to be considered together, and if one interpretation leads to inconsistency and another to harmony with the verdict, the latter is to be adopted.” Knape v. Livingston Oil Co., 193 Kan. at 280.
Here, Harries and Kent engaged in a series of self-dealing transactions between AMT and Mega that started from the time they became members of Mega’s board. When suit was finally brought against Harries and Kent, these transactions were still continuing. While Mega may have been aware of these individual transactions, the jury found that Mega could not have reasonably ascertained the extent of these transactions until the date the audit was conducted. We agree this finding is consistent with the general verdict that Harries and Kent breached their fiduciary duty because they were breaching their duty to Mega on that date.
(b) Is Boyle prevented from recovering any damages occurring prior to Februaiy 18, 1990?
K.S.A. 60-513(a)(4) sets a 2-year statute of limitations for breach of fiduciary duty. See Resolution Trust Corp. v. Scaletty, 257 Kan. 348, 353, 891 P.2d 1110 (1995). The action does not accrue “until the act giving rise to the cause of action first causes substantial injury, or . . . until the fact of injury becomes reasonably ascertainable to the injured party.” K.S.A. 60-513(b).
In this case, the jury found that substantial injury to Mega was not reasonably ascertainable until October 1991. K.S.A. 60-513(b) specifically states: “[I]f the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party.” Thus, the damage award does not need to be modified to be within the statute of limitations because the statute of limitations did not begin running on the action until October 1991. The present action was filed on July 12, 1993, and is well within that time frame.
Joint and Several Liability
Harries and Kent argue the court erred in assessing liability against them individually rather than jointly and severally. Because this issue involves a question of law, this court’s review is unlimited. See Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (.1991).
Both parties rely upon Sieben v. Sieben, 231 Kan. 372, 646 P.2d 1036 (1982), as support for their respective contentions. Harries and Kent cite Sieben for the proposition that Kansas apportions liability between multiple intentional tortfeasors jointly and severally. Boyle, however, cites Sieben for the contention that the amounts in separate verdicts cannot be awarded jointly unless the juiy’s intent to award the total is shown.
In Sieben, John Sieben sued Thomas Sieben and Robert Coffey for a battery that occurred while John was attempting to repossess some equipment. He also sued their employer, H. J. Sieben Construction Co., Inc., on the theory of respondeat superior. The jury returned separate verdicts in the following amounts:
Actual Punitive
Thomas Sieben $20,000 $8,000
Robert Coffey $10,000
H. J. Sieben Constr. Co. $20,000 $8,000
On appeal, Thomas Sieben, Coffey, and their employer argued, among other things, that the trial court erred in allowing the jury to allocate the damages among them. The Supreme Court first noted that the enactment of comparative fault legislation has not changed the common-law rule of joint and several liability in situations involving intentional torts. 231 Kan. at 378. The court also reviewed several general principles on the issue, two of which are relevant to the present case:
“ ‘The overwhelming weight of authority is to the effect that in the absence of statutory authorization, no apportionment of compensatoiy damages may be incorporated in the judgment establishing the liability of joint tortfeasors, generally on the theory that the plaintiff should not be denied the possibility of collecting the full amount of his judgment from any one of the defendants. Therefore, in actions against two or more persons for a single tort, it is improper to return two verdicts for different sums against different defendants upon the same trial; there may be only one verdict for a single sum against all who are found guilty of the tort, irrespective of the degree of culpability. This is true even though the defendants plead separately, or are charged with distinct and different acts contributing to the injury.’ § 76.
" “Where a jury apportions damages as between tortfeasors without stating the total amount of the awards, the courts have in a number of cases held that the aggregate amount of the separate assessments could not be awarded jointly, at least where the jury’s intention to award the aggregate was not demonstrated. In other cases, the verdict assessing equal amounts of damages against each of several tortfeasors without stating an aggregate amount has been held to have been intended as an award against all of the tortfeasors jointly of a sum equivalent only to the amount assessed against each.’ § 80.” 231 Kan. at 378 (quoting 74 Am Jur. 2d, Torts § 76, p. 680, § 80, p. 690).
The Sieben court also recognized that Kansas had addressed the issue and stated that “ In actions for damages against two or more tort-feasors the jury has no authority to apportion the damages among the defendants, in the absence of a statute specifically authorizing such apportionment.’ ” 231 Kan. at 379 (quoting Hubbard v. Havlik, 213 Kan. 594, 603, 518 P.2d 352 [1974]). The court concluded by holding that Thomas Sieben, Coffey, and their employer were jointly and severally liable for the injury caused to John and reduced the amount of damages awarded to $28,000.231 Kan. at 379.
Applying Sieben to the present case, we conclude that Harries and Kent are jointly and severally liable. Boyle has not shown any indication that Harries and Kent should be treated differently from one another. Harries and Kent were both co-owners of AMT and members of Mega’s board of directors. The alleged undercharges benefitted them equally, and their actions clearly contributed to one indivisible injury, namely, Mega’s lost profits. In addition, Kansas does not have a statute that allows the jury to apportion damages against directors who breach their fiduciary duty, and, in the absence of such a statute, the common law controls. Thus, corporate directors who breach their fiduciary duties to the shareholders and the corporation are jointly and severally hable.
This ruling is consistent with Kansas law regarding liability in situations involving indivisible injuries. See, e.g., Milwaukee Ins. Co. v. Gas Service Co., 185 Kan. 604, 609, 347 P.2d 394 (1959) (where two individual’s independent tortious acts combine to produce an indivisible injury, either tortfeasor may be held for the entire damage). It is noteworthy that other jurisdictions also follow the same principle on breach of fiduciary duty. See Radol v. Thomas, 772 F.2d 244, 259 (6th Cir. 1985), cert. denied 477 U.S. 903 (1986) (“The law is clear that directors and officers of a corporation are jointly and severally liable if they jointly participate in a breach of fiduciary duty or approve, acquiesce in, or conceal a breach by a fellow officer or director.”); Higgins v. Shenango Pottery Company, 279 F.2d 46, 52-53 (3d Cir. 1960), cert. denied 364 U.S. 899 (1960); Seaboard Industries, Inc. v. Monaco, 442 Pa. 256, 263, 276 A.2d 305 (1971); Nienaber v. Katz, 69 Ohio App. 153, 162, 43 N.E.2d 322 (1942).
Supersedeas Bond
Finally, Harries and Kent contend the journal entry of judgment and the supersedeas bond should be modified to reflect that Boyle does not have a personal interest in the judgment because this case is a shareholder derivative action.
On May 19, 1994, the court filed its journal entry of judgment, which recites “judgment should be and is hereby entered in favor of Plaintiff Henry Boyle and for the benefit of Mega Circuits, Inc.” and against Harries and Kent. On June 2, 1994, the court granted Harries and Kent’s motion to stay execution of the judgment while the post-trial motions were pending on the condition that Harries and Kent post a supersedeas bond in the amount of $275,000. The court later ordered the bond modified to include the name of Henry Boyle as a beneficiary.
Harries and Kent did not file a motion to correct the alleged error under K.S.A. 60-260 or to clarify the court’s rulings before raising this issue on appeal. Ordinarily, “ '[a] point not presented to the trial court will not be considered for the first time on appeal.’ ” Hephner v. Traders Ins. Co., 254 Kan. 226, 231, 864 P.2d 674 (1993) (quoting Plummer Development, Inc. v. Prairie State Bank, 248 Kan. 664, Syl. ¶ 3; 809 P.2d 1216 [1991]).
To support their contentions, Harries and Kent rely on a motion dismissing Kevin Gassen as a plaintiff in the action because “this is a derivative action and only one stockholder is needed as a nominal plaintiff.” Harries and Kent also point out that Boyle’s counsel argued during closing argument that the case was a derivative action.
This court has recently discussed derivative and direct shareholder actions in Richards v. Bryan, 19 Kan. App. 2d 950, 961-62, 879 P.2d 638 (1994), and noted:
“A claim is said to be derivative if injury is either to the corporation directly or to the shareholder but mediated through the corporation. [Citations omitted.] A shareholder may only litigate as an individual if the wrong to the corporation inflicts a distinct and disproportionate injury on the shareholder, or if the action involves a contractual right of the shareholder which exists independently of any right of the corporation. [Citations omitted.] “Whether a cause of action is individual or derivative must be determined from the ‘nature of the wrong alleged’ and the relief, if any, which could result if plaintiff were to prevail.’ Kramer v. Western Pacific Industries, 546 A.2d 348, 352 (Del. 1988).”
However, this court in Richards also recognized an exception to the distinction between derivative and direct shareholder actions in the context of closely held corporations:
“In a close corporation, the corporation is generally composed of a majority shareholder or group and a minority shareholder or group. Because of the difficulty in determining if a suit must be brought as a direct or a derivative action, an increasing number of courts are abandoning the distinction between a derivative and a direct action because the only interested parties are the two sets of shareholders. Furthermore, some courts have recognized that it is often difficult and futile to bring a derivative action against a closely held corporation. As explained by one authority, ‘[e]ven if a minority shareholder overcomes procedural hurdles in a derivative action, a strong disadvantage is that any recovery accrues to the corporation and hence remains under the control of the veiy parties who may have been defendants in the litigation.’ 2 O’Neal and Thompson, O’Neal’s Close Corporations § 8.11, p. 122 (3d ed. 1992). For this reason, some courts permit oppressed minority shareholders to bring direct suits for breaches of fiduciaiy duties by the majority, even though the minority shareholders’ grievance is primarily based on damage to the corporation.” 19 Kan. App. 2d at 962-63.
The Richards court noted the Kansas Supreme Court has never expressly addressed the issue but recognized that the Supreme Court, in Sampson v. Hunt, 233 Kan. 572, 584-85, 665 P.2d 743 (1983), has “expressed its intent to intervene on behalf of dissatisfied shareholders if corporate directors behave fraudulently.” 19 Kan. App. 2d at 964. This court concluded by stating:
“[I]f a corporation is closely held, a court, in its discretion, may treat an action raising derivative claims as a direct action if it finds to do so will not (1) unfairly expose the corporation to a multiplicity of actions; (2) materially prejudice the interests of creditors in the corporation; or (3) interfere with a fair distribution of the recovery among all interested persons.” 19 Kan. App. 2d at 965.
In this case, both the petition and the amended petition stated that the “[pjlaintiffs bring this action on behalf of themselves and all other stockholders of Mega similarly situated and on behalf of Mega itself.” In the pretrial order, the court also found that “Henry Boyle is the shareholder representative for the [derivative] claims. Plaintiffs also assert, by way of direct action, these claims on an individual basis.” However, the injuries that Boyle alleged occurred in his breach of fiduciary claim are injuries to the corporation itself. Moreover, the trial court did not make any of the findings under Richards to determine if Boyle could maintain a direct action. The judgment entry also implies that Boyle’s judgment was for the corporation and not for him. Thus, the judgment entry is sufficient on its face.
FINDINGS AND DIRECTIONS
Consistent with our conclusions and findings herein, we direct:
(a) Based on our finding that the trial court erred in not amending the pretrial order as it related to damages, but recognizing that the jury had all of the evidence before it regarding the measure of damages, we,direct that the amount of the jury award, $975,000, be restored as the verdict herein.
(b) Consistent with our findings and the law as we find it, Harries and Kent are jointly and severally hable for the entire amount of the juiy verdict.
(c) This matter is remanded to the district court with instructions to enter judgment consistent with the rulings and findings herein.
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The opinion of the court was delivered by
MARSHALL, J.:
The defendant appeals from a judgment granting a peremptory writ of mandamus commanding him as justice of the peace in the city of Hutchinson to grant a change of the place of trial and transmit the papers to another justice of the peace in an action pending before the defendant, wherein the Hutchinson Lumber Company is plaintiff and John L. Weaver, the plaintiff in the present action, is defendant.
The application for an alternative writ of mandamus showed that on the 18th day of October, 1921, the plaintiff in this action, the defendant in the action before the justice of the peace, applied for a change of venue on account of bias and prejudice of the justice. The application recited — ■
“That thereupon said justice stated that he would allow said change of venue, but would'not grant said change of venue nor transmit the papers in said case until the costs were actually paid to him.”
The alternative writ of mandamus was as follows:
To R. P. B. Wilson, Justice of the Peace in and for the City of Hutchinson, Reno county, Kansas:
“Whereas, it has been represented to this court that you have refused to grant a change of place of trial and to transmit the papers to another justice in the city of Hutchinson in the case of the Hutchinson Lumber Company vs. John L. Weaver until the accrued costs were actually paid to you. Whereupon, we being willing that justice should be done in the premises do command you that you R. P. B. Wilson, Justice of the Peace in and for the City of Hutchinson, Reno county, Kansas, do grant said change of place of trial and transmit said papers according to statute in such case made and provided; or in default thereof, that you make known to this court before the Judge thereof the 24 day of October, 1921, at 9:00 a. m., why you have not done the same. And have you then there this writ.”
The motion for a change of,venue contained the following:
“Said defendant hereby confesses a judgment for the accrued costs herein before the above-named justice as provided by section 7778, General Statutes •of Kansas, 1915.”
The record of the order of the justice of the peace on the motion . was that—
“The court after hearing the arguments of the parties and being fully advised finds said motion should be sustained on the condition that the defendant confesses judgment for costs and pays same.
“It is considered and adjudged said motion be sustained and this cause be transferred to Justice T. F. Cox in the City of Hutchinson, Kansas, for trial, and transcript and all papers in files are ordered transmitted upon the payment of costs by the defendant, taxed herein at $3.15, which defendant agreed to pay.”
The plaintiff, in his brief, states that he did not at any time agree to pay the court costs on his application for a change of venue.
The defendant argues that his order on the application for a change of the place of trial was the result of an exercise of judicial discretion which cannot be controlled by mandamus. He argues that if he made a mistake in imposing terms on the change in the place of trial, the mistake must be corrected on appeal. In response to this contention, it must be said that after the affidavit had been filed and the confession of judgment had been made, there was nothing for the defendant to do but grant the application for a change; he had no discretion in the matter.
The statutes material for consideration in the determination of the question presented are sections 75, 78 and 79 of the justice civil code. They read as follows:
“If, on the return of process, or at any time before trial shall have been commenced, either party shall file with the justice of the peace before whom any cause is instituted or is pending for trial, an affidavit, stating, first, that such justice is a material witness for either party; or, second, that he verily believes that he cannot have a fair and impartial trial before such justice on account of the bias or prejudice of the said justice against the affiant; or, third, if a jury be demanded by the adverse party, then that he cannot as he verily believes have a fair and impartial trial in such township, on account of the bias or prejudice of the citizens thereof — the trial of the case shall be changed to some other justice of the peace, as provided in the next section.” (Gen. Stat. 1915, § 7775.)
“Before any such change .shall be allowed, the costs, as specified in the next following section, shall be paid by the party applying for such change, or he shall have confessed a judgment therefor before the justice granting the change.” (Id., § 7778.)
“When such change is at the instance of the plaintiff, he shall be taxed with all the costs which have accrued and which shall accrue in the cause, until such transcript and papers shall be delivered to the justice to whom such cause is removed for trial; and when on the application of the defendant, he shall be taxed with the costs which have accrued for issuing subpoenas to witnesses, and service thereof, witness fees, and costs of the justice for transferring the cause to the docket of the other justice.” (Id., § -7779.)
The plaintiff relies on Herbert v. Beathard, 26 Kan., 746, an action in mandamus to compel a justice of the peace to grant a change of venue. The district court granted a peremptory writ, and the case was appealed to the supreme court, where the judgment of the district court was modified, in particulars not important here, and as modified was affirmed. The effect of the case was to allow a peremptory writ of mandamus to compel the justice of the peace to grant a change of venue. The court there said:
“The granting of a change of venue by a justice of the peace is not a matter of pure judicial discretion, but is in fact purely a ministerial act. The justice may, in some cases, exercise some judicial discretion in determining the question as to what justice he will send the case; but he cannot exercise any judicial discretion in determining whether he will grant the change of venue, or not. If the application, when the justice is finally called upon to act upon it, is sufficient, he must grant the change of venue, but if not, he must refuse it.” (Syl. If 3.)
The defendant relies on Spacek v. Aubert, 92 Kan. 677, 141 Pac. 254, where this court said:
“An erroneous refusal by a justice of the peace to grant a change of venue does not deprive him of jurisdiction. The remedy in such case is by appeal. Mandamus will not be allowed to correct the error.” (Syl. ¶ 2.)
In Hamilton v. Smart, 78 Kan. 218, 95 Pac. 836, the court used the following language:
“It was said that if an error was committed in denying a motion for a change -of venue it could be corrected in a proceeding in error, and mandamus could not be employed to compel the trial court to allow the motion.” (Syl.)
In Spacek v. Aubert, supra, several decisions of this court are reviewed. Herbert v. Beathard, 26 Kan. 746, is not mentioned.
26 Cyc. 203 uses this language:
“Where there is a clear ministerial duty to award a change of venue, such change may be compelled by mandamus.”
26 Cyc. 196 says:
“Mandamus lies to compel a justice of the peace ... to change the place of trial.”
Before 1909, the code of civil procedure provided for a petition in error from the judgments and final orders of justices of the peace. That law was repealed when the code of 1909 was passed. (Kroenert v. Sawyer, 87 Kan. 374, 124 Pac. 418; In re Miller’s Estate, 90 Kan. 819, 821, 136 Pac. 255; Atkinson v. Kuchler, 94 Kan. 438, 146 Pac. 1038; Hallacy v. White, 106 Kan. 504, 188 Pac. 423.) Since 1909, the statutes, sections 120 and 121 of the justice civil code, provide for an appeal from the final judgment of a justice of the peace upon a bond being given to prosecute the appeal without unnecessary delay and to satisfy the judgment and costs if judgment be rendered against the party appealing. Do these statutes give to the plaintiff such an adequate remedy in the ordinary course of law as is intended by section 715 of the code of civil procedure? The defendant may not be able to give the bond required to perfect an appeal; his only adequate remedy is by an action in mandamus to compel the defendant to do what the law says he must do.
This may appear to be contradictory to Spacek v. Aubert, 92 Kan. 677, 141 Pac. 254; but, when that case was decided, this court was assuming that on an appeal from a judgment of a justice of the peace errors of the justice might be reviewed. Afterward, this court held otherwise. (Norman v. Toliver, 94 Kan. 356, and the unreported opinion referred to therein.) When it was held that errors of a justice of the peace cannot be reviewed, the reason for the rule declared in- Spacek v. Aubert no longer existed, and another rule must prevail.
The judgment of the district court is ¿firmed. | [
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Per Curiam:
This was a suit upon a benefit certificate or policy of life insurance issued by a fraternal society. One of the defenses to the suit was that the assured had failed to pay within the time required the last mortuary assessment made by the society. It appeared, however, that although he, had failed to pay the last mentioned assessment he had paid two others of like amounts for which he was not liable, and that at the time of his death the society was in reality his debtor to the amount of one assessment. Under these circumstances his benefit certificate or policy was not forfeited and the defense of forfeiture therefore failed. The case is within the terms of Southwestern Benefit Association v. Swenson, 49 Kan. 449, 30 Pac. 405, and Elliot v. Grand Lodge, 2 Kan. App. 430, 42 Pac. 1009, and many like cases of other states.
Another defense to the suit was that certain statements made by the deceased in his application for membership in the society and for the issuance of the benefit certificate and certain answers to questions asked him by the medical examiner of the society touching his habits in the use of intoxicating liquors were untrue.
The case was tried to the court without a jury. The principal issue presented to and determined by the court was the truthfulness of these statements and answers. This issue was found in favor of the plaintiff. We do not, as has been repeatedly decided, reexamine questions of fact upon which the evidence is conflicting. No question of law arises out of the contention over this question of fact with sufficient prominence to require us to give it attention. The plaintiff in error also claims that the court erred in refusing to allow it to prove that the father of the deceased knew of the reception by his son of intoxicating liquors through the express office and had warned the express agent to not deliver consignments of liquor to his son. The offer of this evidence was not in impeachment of anything the father had testified to as a witness. It was, therefore, inadmissible. The court rightly rejected it.
There is no error shown, and the judgment of the court below will be affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The plaintiff, a corporation, is engaged in manufacturing and selling billiard tables and equipment therefor! It brought suit in replevin for the possession of three pocket-billiard tables and equipment, claiming • a special ownership therein by virtue of a chattel mortgage executed by L. H. Howard, to whom the company sold the tables. The defendant claimed that he paid the full consideration to the plaintiff for the property and was entitled to the possession and ownership. Plaintiff prevailed, and the defendant appeals.
The evidence of the plaintiff showed that in July, 1920, L. H. Howard, who lived at Hudson, Kan., came to plaintiff’s place of business in Kansas City, Mo., examined the stock, and signed a contract for the purchase of the tables, at the-price of $1,169.19, which included equipment. He stated to the salesman at the time that another party was loaning him the money with which to make the first payment and that he would return with him later. About 5 o’clock Howard came in with Witt, who looked at the tables and gave his check for the $800. The tables and equipment were shipped to Hudson on a shippers’ order bill of lading “Notify L. PI. Howard.” The bill of lading, together with a chattel mortgage and notes for the deferred payments, were sent to the Hudson State Bank, of which the defendant, Witt, is president, with instructions for the bank to deliver the bill of lading to Howard upon his executing the notes and mortgage and upon their being placed of record. The directions were followed out. Howard paid the freight and the mortgage was placed of record.
Witt’s contention is that he purchased the property from the plaintiff and that the $800 he paid was the full purchase price, and that Howard had no authority to execute the mortgage. The defense raised a mere question of fact, and if it can be said that the evidence offered by the defendant raised any doubt or conflict about the matter, the jury settled it in favor of the plaintiff. In addition to the general verdict the jury returned answers to special questions, finding that the defendant did not purchase the property from the plaintiff, and that the taking of the mortgage was not a scheme or trick between plaintiff and Howard. In the motion for a new trial the defendant complained that there was no evidence to prove the value of the property. The price at which the tables sold less than a year before was in evidence, and the jury apparently attempted to state the value of the plaintiff’s special interest in the property, which was just the difference between the initial payment and the amount of the verdict. No substantial reason being suggested why the judgment should be reversed, it is affirmed.
Judgment affirmed. | [
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The opinion of the court was delivered by
BuRÓh, J.:
The action was one to foreclose a real-estate mortgage. A decree of foreclosure was -entered, and the court fixed the redemption period at six months from date of sale. The defendants appeal from the portion of the decree limiting the redemption privilege.
The petition tendered an issue on the subject of time within which redemption might be made. It was alleged the mortgage was a .purchase-money mortgage, and the defendants were not in good faith occupying the mortgaged premises, but had abandoned them. The defendants answered this portion of the petition by a general denial. On motion for judgment on the pleadings, the court, without taking evidence, made findings that the mortgage was a purchase-money mortgage, and that the mortgaged premises wiere not occupied in good faith, but had been abandoned by the defendants. Pursuant to these findings, the decree barred the defendants from all interest in the land except privilege to redeem within six months from date of sale.
The answer of the defendants presented some affirmative defenses which were untenable, and doubtless the court, in overruling them, overlooked the general denial, whidh controverted the allegations bearing on the subject of redemption. The issue thus raised should have been tried.
The judgment is modified by striking out the limitation respecting redemption, and the court is directed to determine and fix a proper redemption period. ' > | [
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The opinion of the court was delivered by
DawsoN, J.:
The defendant, George W. Cruse, was convicted of uxoricide.
The evidence for the state tended to show that George W. Cruse and Ella Cruse, his wife, resided in a duplex house in Wichita, and that their married life was stormy, and that the defendant became enamored with a young woman in Topeka, Kathleen Foley. He told her and her parents that his wife was a bad woman who kept a rooming and gambling house in Denver, and that he had not lived with her for four years and that he was going to get a divorce from her. He became engaged to Miss Foley and told her sister he was going to obtain a divorce and would marry Miss Foley in June, 1921., Defendant’s wife was a woman in apparently good health! On the night of February 5, 1921, she retired with her husband. An pccupant of the same house heard them talking in-rather loud, harsh tones. About three o’clock on the following morning, the defendant aroused other residents of the house, saying that his wife was sick and to come quick. The first of these to reach her found her lying on the bed. He testified that her face was ashy, like one in a faint or dead; there seemed to be black splotches on her face — “looked like one when they were choking.” Some eight witnesses who saw the body either that morning, or later after it was embalmed, testified that there were marks the size of finger prints on the neck from the jawbone down, marks on back of neck, bruises on throat and side of neck of the size of thumb and finger, bruises on neck which looked like finger prints, marks on arm and cheek, bruise on hand and elbow, two cuts on right ha-nd, bruise on right cheek, cut on shoulder by the neck. A doctor who performed an autopsy testified that the body of the victim was in a healthy condition and gave his opinion that death had been caused by strangulation of suffocation. Several of the witnesses testified that the body bore black-and-blue marks on the legs from the knees down; there were bruises, some dark spots above the knee. To the first witness, who appeared in the early hours of February 6, and who with defendant had attempted to revive the woman and on whose suggestion the defendant called a physician, the defendant several times addressed the question: “We did all we could, didn’t we?” And an hour later defendant came to the apartment of the witness and repeated: “We did all we could, didn’t we?” After a coroner’s inquest, the defendant was arrested and released on bond. Shortly thereafter he went to the house of the Foley family in Topeka, and endeavored to persuade Miss Foley and her mother to leave the state until after his trial, saying that if they came to Wichita as witnesses “it meant ninety-nine years in the pen for him.” He left three checks with the Foley family to defray the expenses of mother and daughter in leaving the state. He also requested Mrs. Foley to say to any telephone inquiries that she did not know him; and on her refusal to agree to this, he requested her to write a friendly letter to his mother as if the two families had been friends for years.
o Such were the most significant incidents testified to against defendant. The testimony touching the marks on the woman’s throat, neck, body and limbs,-came mostly from nonexpert witnesses — neighbors, relatives, and the undertaker. The doctor called by the defendant on the night of the woman’s death testified for defendant that he saw nothing out of the ordinary and that he saw no marks to indicate that she had been choked, that he thought she had not died of strangulation or suffocation and that “the cause of death was natural.” On cross-examination by the state, this doctor testified that he thought he would have seen marks upon the body if any were there; that he only examined the upper portion, but did not examine the head nor the arms, that he was in the room ten or fifteen minutes but did not use all that time examining the body, “did not consider it necessary,” and that he did not examine the rest of the body because his suspicions were not aroused. The other evidence in the case, which has been carefully perused, had little bearing upon, the guilt or innocence of the accused.
The defendant was found guilty of murder in the second degree and appeals, assigning many errors, which will be noted in detail.
The first error assigned relates to the overruling of defendant’s motion to quash. The information, with other appropriate recitals, alleged that the defendant—
“With his hands, seized, grasped and pressed the neck and throat of her the said Ella Cruse and did use other means and instruments a more definite and certain description of which, affiant is unable to give for the reason that he does not know the same, etc.”
Defendant contends that this charge was too indefinite and uncertain and that it charged more than one offense, and that it did not apprise him of the manner, means, or method which it was claimed he used in committing the crime. This contention cannot be sustained. But one offense was charged — the murderous killing of his wife — and the court would have no difficulty in pronouncing sentence on such a charge if a conviction were had. (The State v. Hutzel, 108 Kan. 456, 195 Pac. 887.) The manner, means and method were as definitely alleged as the nature df the case, the circumstances, and the absence of eyewitnesses, would permit. The additional language included in the charge, that the defendant “did use other means and instruments a more definite and certain description of which affiant is unable to give for the reason that he does not know,” is not objectionable. It has the approval of good authority. In R. & E. Conde v. The State, 33 Tex. Crim. App. 10, a murder case, where a reversal was required for various errors, the appellate court said:
“In view of another trial, we would call attention to the fact that the evidence fails to show the deceased came to his death either by a gun-shot or knife wound, as alleged in the indictment. ... We would further suggest that another indictment be found, in which the further allegation be inserted that the deceased came to his death by some means, and by use of some weapon, to the grand jurors unknown, in order to meet all phases of the testimony adduced on the trial.” (p. 13.)
In Hicks v. The State, 105 Ga. 627, the presentment charged that the defendant “did then and there ... by choking and by other means to the jurors unknown, . . . kill and murder one Miley Hicks,” etc. The court said:
“The presentment alleges that the killing was done ‘by choking,’ and also ‘by other means to the jurors unknown.’ It appeared from the evidence introduced in the trial of the case, after the demurrer had been overruled, that the circumstances of the killing would not admit of greater certainty in stating the means employed in committing the offense. It was held in the case of Commonwealth v. Webster, 5 Cush. 295, that ‘An averment in an indictment for murder that the defendant committed the crime at a place specified, “in some way and manner, and by some means, instruments, and weapons to the jurors unknown,” is sufficient, when the circumstances of the case will not admit of greater certainty in stating the means of death.’ We think, therefore, that the court did not err in overruling the demurrer to the presentment.” .(629.) '
See, also, Kelley’s Criminal Law and Practice, (3d ed.) 429, 430; 21 Cyc. 843.
The second error assigned relates to the overruling of defendant’s written objection to the introduction of evidence. The brief suggests that the purpose of the objection was to raise the point that defendant had not been arraigned nor asked to plead. But the written objection interposed gave no hint of this point. It contained a cloud of words covering a printed page of the brief, repeating the objections raised in the motion to quash, and reciting that—
“This defendant is not apprised of the charge against him or of what means and instruments said defendant is charged with using to commit the crime charged in said amended information, and for the further reason the said defendant does not know what is attempted to be charged against him and what he is charged with having done, and said information raises no issue which this defendant can meet; and that there are no issues raised in this case, and for the further reason that it is not fair to the defendant to be forced to trial in this condition or under this amended information, because of the fact as hereinbefore set forth, and because of vagueness, uncertainty and indefiniteness of said amended information.”
After the motion to quash was overruled the transcript recites:
“Thereupon, the parties announce themselves ready for trial. (Recess until 2:15 o’clock, p.m. same day.)”
The want of arraignment and plea was raised in the motion for a new trial and in the motion in arrest of judgment. In these latter proceedings the accuracy of the recital in the transcript quoted above was questioned, but the objection to it was not sustained. A photographic copy of the reporter’s notes is produced, which might tend to show that the quoted recital was an interpolation, and we are asked to rule on our own judgment that the recital in the transcript must be incorrect. Even if it were an interpolation, it would not necessarily follow that it was not true. The reporter might have merely corrected a fault of his own, by inserting what he should have set down as it transpired. Moreover, it was shown by affidavits that'when the case was set for trial, counsel for defendant announced “that they waived arraignment, reserving the right to file a motion to quash.” After the motion to quash was overruled, according to some of the affidavits, the court inquired if the parties were ready, and counsel for the state answered in the affirmative, and the affiants’ recollections were “that the attorneys for the defense said they were ready for trial.” The showing made by defendant is not altogether at variance with this. One of defendant’s counsel deposed:
“Q. Just state what occurred. A. When the announcement was made by Mr. Williams, the court, I think, asked if we were ready for trial. Mr. Porter nudged me and we said nothing.
“Q. You remember that distinctly? A. Yes, sir; I remember that very distinctly.”
On this seeming but not serious conflict of testimony the finding of the trial court must be regarded as conclusive. In The State, ex rel., v. Lyons, 106 Kan. 860, 189 Pac. 976, there was a dispute between counsel as to whether a request for the appointment of a guardian ad litem had been made. It was said:
“In the rivalry and bustle which often attend the conduct of a stoutly contested lawsuit, it is not very unusual for opposing counsel to disagree as to some of the incidents which transpire in the course of a trial. . . .
“Here, then, is a triangular dispute as to a question of facjt — that it did happen, that it did not happen, and that something pertinent though different did informally happen. This court cannot resolve such a dispute. That is the function of the trial court. (Bruington v. Wagoner, 100 Kan. 439, 164 Pac. 1057.) Moreover, if the trial judge had been positive as to the accuracy of his own recollection of the incident, his personal knowledge would have been equivalent to evidence. (Christisen v. Bartlett, 73 Kan. 401, 403, 84 Pac. 530, 85 Pac. 594.)” (pp. 862, 863.)
Furthermore, if the facts narrated in the deposition of counsel for defendant, quoted above, be adopted as the most accurate statement of what transpired, the silence of counsel when the court “asked if we were ready for trial,” was equivalent to an affirmative response. Qui tacet consentiré videtur. It is settled law that arraignment and plea may be waived (The State v. Glave, 51 Kan. 330, 33 Pac. 8; The State v. Baker, 57 Kan. 541, 544, 545, 46 Pac. 947); and it is waived in effect by an announcement that defendant is ready for trial. (The State v. Cassady, 12 Kan. 550, syl. § 7; 16 C. J. 391, 392.) In The State v. Moore, 61 Kan. 732, 60 Pac. 748, the judgment was not reversed for the want of an arraignment, but because defendant was arraigned and required to plead in the absence of his counsel.
The next error relates to the overruling of defendant’s motion to discharge the defendant at the close of the state’s evidence and the overruling of his motion directing a verdict of acquittal. These motions were based upon the assumption that the corpus delicti and defendant’s guilt were not proved. How very far from correct was such assumption is apparent from the summary of the state’s evidence which we have given above. The evidence , to prove the corpus delicti and the evidence to establish the guilt of a defendant are not necessarily matters which have to be separately developed and kept apart like files of unrelated matters in the pigeonholes of a lawyer’s desk. Frequently, as in this case, neither is completely established until all the evidence on both points, the fact of the crime and defendant’s guilt, is presented to the trial court and jury. From the state’s evidence and the evidential circumstances, and notwithstanding the negative testimony of the doctor who was called on the night of the woman’s death — founded upon his careless, partial and inconclusive examination of her body — the violent death of Ella Cruse at the hands of defendant and his motive therefor were far too persuasively established to make the issue one where the trial court could dispense with the functions and service of the jury, and so the motions to discharge and to direct a verdict were properly overruled.
The next error assigned relates -to the admission of certain testimony.
The defendant sought to show by cross-examination of the state’s witness, Mrs. McGaha, sister of the deceased, that the witness had said to Mrs. Dillard, aunt of the defendant, that she didn’t think defendant was guilty but that she was going to make defendant’s mother spend some of her money. The witness denied having said anything of the sort. Mrs. Dillard was later called as a witness for defendant and she testified:
“Q. Do you know Mrs. McGaha? A. I do. . . .
“Q. Mrs. Dillard, if after the death of Mrs. Ella Cruse, you and her came down to see about buying some clothes to bury her in? A. We did.
“Q. Mrs. McGaha? If going across the street to Inness’ Store she said this to you or this in substance here in the city of Wichita a day or two after the death of Ella Cruse, ‘We have no evidence against George’ referring to George Cruse, ‘We don’t think he killed her but we are going to make the old woman or the old lady spend a little of her money’ or words to that effect? A. She said exactly those words or very nearly.
. “Cross-examination . . .
. “Q. Did you say anything? A. I did not. . . .
“Q. She stated that and you did not say anything at all? A. I did not, I had nothing to say.”
The state called Mrs. McGaha in rebuttal to give her version of the conversation:
“Q. Did you have a .conversation with Mrs. Dillard? A. Yes, sir. . . .
“Q. Will you state when that conversation was in — about when it was? A. Well, on Monday after my sister’s death. . . .
[Objection — Overruled.]
“Q. What, if anything, did Mrs. Dillard say to you? [Objection. — Overruled.] When I spoke about this she said that she would not be at all surprised if he done it because he abused his own father and mother and said— well if you want me to say more — (interrupted) . . .
“Q. Had you finished your answer? A. No, sir, she said more than that. . . .
“A. She asked me — I told her I would hate to think that of anyone but I said that she had marks on her neck and it looked like she did not die a natural death and she said, well, — ‘Well, don’t you think if she did it that it could be settled out of court?’ and I said do you think — (interrupted).
“Defendant’s counsel: To which we object as incompetent, irrelevant and immaterial.
“By the Court: The latter part will be sustained.
“Cross Examination. . . .
“Q. Is that all? A. No.
“Q. What else? A. I asked her if she was willing, if her sister would die under the same circumstances, if she would let it go at that and she said no but she said they had money and would fight it.
“Defendant’s Counsel: To which we object as hearsay and incompetent, irrelevant and immaterial and not rebuttal. . . .
“By the Court: The question that occurs to me whether or not on cross-examination when the witness was asked these impeaching questions, or a question which counsel says was an impeaching question, then the defense introduces a witness who testifies as to the conversation — whether or not then the state has a right to introduce a witness to give her version as to the conversation which is not covered entirely by that witnesses — by the cross-examination of this witness.” [Overruled.]
The defendant’s contention was that when upon cross-examination of Mrs. McGaha she denied making the statement insinuated by question of counsel, and when defendant had shown by Mrs. Dillard that Mrs. McGaha had made that statement, that this closed the incident, and that the state was precluded from showing what the conversation actually was, and that the state was precluded from showing that Mrs. Dillard’s testimony that she had not said anything was untrue. We do not so understand the rules of evidence. The state introduced no evidence of any conversation between these two women on this relatively inconsequential matter up to the time counsel for the defendant sought to develop it by Mrs. McGaha, the state’s witness. Then Mrs. Dillard, witness for defendant, in response to a leading question, testified that such con versation was had. She further testified that she herself had said nothing. Surely the state then had the right in rebuttal to show what the conversation was, and to show that Mrs. Dillard’s testimony that she herself had said nothing was not true. The trial court’s reasoning (abridged above) and its ruling were not erroneous.
Another witness testified that he and the defendant took defendant’s mother home in a car the morning after the tragedy and that the following conversation-was had in defendant’s presence:
“Q. Did you say you took Mrs. Cruse, the mother of Mr. Cruse, home that morning, did you? A. Yes, sir. . . .
“Q. Now, was Mr. Cruse with you at that time? A. Yes, sir.
“Q. Mr. Cruse went home with his mother? A. Yes, sir.
“Q. Was there any conversation took place between any of you when you were taking them home that morning? A. Yes, sir.
“Q. What was that- conversation? ... A. Mrs. Cruse says, ‘It scared me when George called me; I could not imagine what had happened, because you know they led such a stormy life.’ ...
“Q. Was Mr. Cruse present? A. Mr. Cruse was in the car.”
[Obj ection — Overruled.]
This evidence falls within the rule that statements to the prejudice of an accused, made in his presence and which he tolerates without resentment, explanation or denial, are ordinarily admissible as some evidence of his consciousness of guilt. The leading authorities on this subject are elaborately discussed in State v. Mortensen, 26 Utah, 312, 73 Pac. 562, and section 4 of the syllabus therein reads:
“Defendant was suspected of having killed deceased, and after deceased’s body had been dug up, and while it was lying in a patrol wagon, deceased’s father said, while defendant was within six or eight feet from him and near the vehicle, as though talking to the body, ‘He murdered you for a receipt that was on your body representing $3,800, and you never ran away, nor he never gave you a dollar.’ Held, in a prosecution of defendant for the homicide, that such statement by the father and the fact that defendant said nothing in reply, but hung his head and looked on the ground, was admissible as an admission indicative of guilt.”
See, also, 16 C. J. 631-633; 2 Wigmore on Evidence, pp. 1253-1261.
This evidence as well as the testimony that defendant had remained silent when reproached and chided by his wife’s relatives for mistreatment of his wife, for beating her and kicking her out of bed, was admissible under the rule announced in The State v. O’Neil, 51 Kan. 651, 33 Pac. 287:
“Ill treatment and previous assaults by husband on wife are admissible to prove motive, in cases of marital homicide.”
Another error assigned in the admission of evidence pertains to certain testimony of a brother-in-law of the dead woman. On cross-examination this witness testified that he was unfriendly to the defendant. The re-direct examination reads:
“Q. You say you are not friendly with him? What is the reason you are not friendly with him? ... A. Well, I am not friendly with him because of his treatment of his wife that I know of.
“Q. What was that treatment?”
[Objection.]
“By the Court: The objection will be overruled in so far as he has personal knowledge. A. Beg pardon, what was the question?
“Q. You say that treatment, you say because of the treatment of his wife that you are not friendly? A. Because I knew that he abused her and beat her and kicked her.
“Defendant’s Counsel: We move to strike out the answer of this witness as false, maliciously false, and made with the purpose and intent to harm and injure this defendant, and for the further reason that the witness testified on the coroner’s inquest and preliminary examination that he had no personal knowledge concerning the same and that it is hearsay testimony. Because he has a hatred does not allow him to go ahead and tell a lot of trash.
“By the Court: Interrogate him as to how he knows these things and if it is hearsay it will be stricken out. Interrogate him as to how he knows these matters.”
Touching this evidence it will be noted that the defendant’s counsel, properly enough (40 Cyc. 2481), had elicited from the witness the fact, that he was hostile to defendant, from which it might be deduced that he was not worthy of credence. It was therefore proper on rebuttal to show that a righteous and not a reprehensible motive had given rise to the attitude of the witness toward defendant, so as to lessen any discrediting effect of his admission of hostility. (40 Cyc. 2571.) It should also be noted that the objection that the answer was “false, maliciously false,” etc., was not good. The truth or falsity of the testimony was for the jury and could not be ruled out on such an unusual objection. Moreover, the trial court told counsel how it could be gotten rid of if it was hearsay.
Yet another complaint on the admission of evidence relates to the rebuttal testimony of J. M. Benham, who testified to matters pertaining to the coroner’s inquest. An undertaker, Chas. E. Lahey, a witness for defendant, had testified that he saw no marks of any consequence on the body. The chief objection to Benham’s testimony was that it was not rebuttal. But the court restricted Ben- ham’s examination to a narrative of marks upon the body which were pointed out at the inquest and which Lahey, who attended the inquest, must have seen, and Benham’s testimony was admissible as tending to show that Lahey had not told the truth.
A general objection and argument is made against the state’s evidence because most of the state’s witnesses who testified concerning the marks on the body did not view it until after it was embalmed, when of course its condition was different from what it was when the woman died. That fact could only lessen the weight to the state’s evidence; it did not destroy its admissibility. Not infrequently bodies are exhumed after embalming and burial for such fragmentary evidence as they may supply to solve the cause of death. (13 C. J. 1249, 1260; 17 C. J. 1144.)
Out of caution the defendant took exception to the thirty-three instructions given by the trial court, but his counsel frankly say that “there is not a great deal to complain of instructions' given by the court in this case.” They do urge that the significance to be attached to the evidence of defendant’s prior ill treatment of his wife was not properly restricted to proof of motive. The instruction is subject to this criticism, but if it had accurately stated the law it would or should have had some potency against defendant; while as given it was somewhat too favorable to defendant and partly meaningless. • ■ •
The court has patiently studied the abstracts and briefs of counsel, and has freely resorted to the transcript to inform itself fully touching the matters which transpired at the trial; but we find nothing in the record to justify a disturbance of the judgment.
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The opinion of the court was delivered by
Burch, J.:
The action was one to construe a will. A demurrer to the petition was sustained, and the plaintiff appeals. A copy of the will is appended to this opinion.
The plaintiff contends that the trust created by the seventh subdivision of the will is void, that the real estate forming the corpus of the trust estate was not disposed of by the Will, and that the plaintiff succeeds to his share of it, as a son of the testator, by virtue of the statute of descents and distributions.
One ground of the demurrer was that the plaintiff lacks capacity to call upon the court to interpret the will. The argument is, the testator clearly intended to disinherit the plaintiff, intended his other children should have all his property, and it is of no concern to the plaintiff whether the trust be good or bad. The argument assumes the testator accomplished by the will his evident desire to disinherit the plaintiff and give all his property to his other children. That is what the plaintiff wants the court to pass on. It is conceded the real estate made the subject of trust is very valuable, and the plaintiff is very much interested in knowing whether the law, when applied to the will, takes the real estate out of the class, property disposed of by will, and places it in the class, property concerning which the testator died intestate. The plaintiff can gain authentic information on that subject in no way except through judicial interpretation of the will.
The defendants cite the case of Treadwell v. Beebe, 107 Kan. 31, 190 Pac. 768, as similar to this one, and in many respects it is. The plaintiff was an heir of the testator and a beneficiary under the will, as the plaintiff here is an heir of the testator -and a beneficiary under the will, although only to the extent of a dollar. The plaintiff in the Treadwell case attacked a trust created by the will, as the plaintiff does here. The court construed the will, upheld the trust, and declared the extent to which the will'provided for the plaintiff. Having done this, the court declined to go further, and tell the plaintiff the meaning of provisions in which, as the court held, she had 'no interest. Should the court in this case decide the trust created- by the will is valid, it would not construe the trust provisions at the plaintiff’s behest.
The plaintiff’s main contention is that the estates coming into possession on termination of the trust did not vest at death of the testator, but were contingent; that being true, the thirty-year trust was void as violating the rule against perpetuities.
What is meant by vesting at death of the testator?
Estates are said to vest in possession, and to vest in interest. An estate vests in possession when there is an accrued, fixed and indefeasible right to present enjoyment. An estate vests in interest when there is a present, accrued, fixed and indefeasible right to enjoyment at a future time. The subject may be illustrated by a simple instance of particular estate and remainder created by will in the following form:
I devise all my real estate to my -wife, Mary, for the term of her life, and at her death to my two sons, James and John, share and share alike, in fee.
At the death of the testator, Mary takes an estate vested in possession, and James and John take estates vested’in interest. Mary is entitled not only to possession, but to every privilege of ownership, extending up to the time of her death. Because her estate terminates at her death, it will not pass to her heirs, and she cannot make an effective devise of it. She may, however, lease, mortgage, and convey for life, and should she convey, her grantee may enjoy the estate while she lives. James and John have every privilege of ownership except present enjoyment. Enjoyment is postponed until termination of the life estate. There is, however, no qualification of their competency to enjoy when the life estate comes to an end. There is no uncertainty the outcome of which must be awaited, no condition to be satisfied', and no event to occur, except only the death of Mary, and that is certain to occur. Their estates accrue, and are fixed and indefeasible the moment the testator dies, the same as Mary’s estate. Should one of them die intestate before Mary, his estate will pass to>his heirs. Should he leave a will, his devisee will enter into enjoyment at Mary’s death. He may convey before her death, and his grantee will have a fee simple absolute, vested in possession the moment she dies.
Suppose, however, the will contained a further clause like this:
Should either of my sons die before his mother, leaving a son, his share shall go to his son; should he leave no son, his share shall go to his surviving brother.
In that event, no estate would vest in interest because of uncertainty, insolvable until Mary’s death, that either James or John would ever come into enjoyment. While James and John would be persons in esse, known and ascertained at the testator’s death, the uncertainty of survivorship would make it dubious who would take at death of the life tenant. Should James die before his mother, his heirs generally would not take. His son alone would take, in case he had a son. He could not make a will, effective on the death of Mary, because, if he should not survive her, his father’s will would control. He could not .make a conveyance which would surely entitle his grantee to enjoyment at Mary’s death. His surviving brother, John, alone might enjoy. It comes about, therefore, that an estate vested in interest is one enjoyment of which, by a definite person, his heirs, devisees, or assigns, at termination of a precedent estate, no contingency can defeat.
The foregoing is elementary law, established by numerous decisions of this court, and stated in terms as simple as possible. Keeping it in mind, let us read the will, and see what the testator said.
The first item of the will gives to the testator’s son, John E. Kirkpatrick, his daughter, Lillian M. Kirkpatrick, his daughter, Pearl I. Bair, and his son, Adelbert B. Kirkpatrick, share and share alike, all property not afterward disposed of by the will. In succeeding items specified real and personal property is given to each one of the four children named. James M. Kirkpatrick, a son, is given one dollar. He is mentioned nowhere else in the will, and so was disinherited.
The seventh item disposes of what is agreed to be the bulk of the testator’s estate, consisting of real estate in the city of Topeka, in trust. The trustees are John, Adelbert, and Lillian. The beneficiaries are John, Adelbert, Lillian, and Pearl. The term of the trust is thirty years after the testator’s death. The trustees have power to manage, but are forbidden to encumber or sell. The beneficiaries are to receive net income, payable monthly. Provision is made for disposition of any beneficiary’s share of income in case of death, and for succession in trust.
The paragraph of item seven fixing length of trust period reads thus: “For a term of thirty (30) years after my death, at which time said property shall descend as hereinafter provided.” The subsequent provision here referred to begins as follows:
“After the termination of the trust herein defined, I give and bequeath all of the real estate above described and made the subject of said trust equally, share and share alike, to my two sons John E. Kirkpatrick and Adelbert B. Kirkpatrick, and my two daughters Lillian M. Kirkpatrick and Pearl I. Bair,
Had the provision ended where the quotation ends, the words of the earlier provision, “at which time,” and the words of this provision, “after termination of the trust,” might be referred to time of enjoyment, and not to time of vesting of estate. So construed, the four children would take estates vesting at death of the testator. The provision did not, however, stop as indicated. It concluded with the words, "or the survivors of such four children.” Survivors at what time? Manifestly, at termination of the trust, thirty years after the testator’s death. It would foist upon the will a meaning which the testator had no intention of conveying, to make the concluding clause read, “or the survivors, at my death, of such four children.” Since that may not be done, it cannot be known, until thirty years have elapsed from date of the testator’s death, that any one of the four children will certainly come into enjoyment of any part of the trust estate. Enjoyment depends on outliving the trust period, and the children take contingent and not vested interests. (Purl v. Purl, 108 Kan. 673, 197 Pac. 185.)
On page 680 of the opinion in the case just cited, the following statement of principle was approved:
Where a gift to survivors is preceded by a life or other prior interest, it takes effect in favor of those who survive the period of distribution, and those only, unless a special contrary intent is found in the will.
Further examination of the will discloses, not only absence of special contrary intent, but affirmative evidence of intent that only those children of the testator shall partake in distribution of the trust estate who survive the thirty-year period. The sentence following the one last discussed disposes of what a nonsurvivor would have taken, “if at the termination of said trust any of the four children shall have died without issue.” The next sentence disposes of what a nonsurvivor would have taken, “in case.any of such four children', at the time of the termination of this trust, shall have died leaving heirs.” The sentence ends with the following: “Or that the share of such deceased child shall descend to his widow and children, or both, in the proportion that such child would have inherited had he or she survived.”
If John- E. Kirkpatrick became vested in interest in the trust property when his father died, he could convey it to-day, and, should he die to-morrow, his grantee would come into possession at the end of the thirty-year period, and would share equally with Adelbert and Lillian and Pearl, should they be alive. This would defeat express provisions of the will. If Lillian, who is unmarried, became vested in interest in the trust property when her father died, she could make a will disposing of one-fourth of the trust estate, and should she die before the end of the thirty-year.period, her de- visee would share equally with her brothers and sister, should they then be living. The will expressly defeats any such exercise of ownership. It does so because the testator disposed of what she would take if she survived the trust. Taking at all, by any one of the four children, is conditioned upon surviving the trust, and so the devise to each is contingent,, and not vested.
The court does not propose to review authorities generally. The decision in the case of Purl v. Purl, 108 Kan. 673, 197 Pac. 185, dealt fully with the subject under consideration, and is conclusive upon the defendants. A few cases cited by the defendants will be noticed. The first one is Bunting v. Speek, 41 Kan. 424, 21 Pac. 288.
There is no opinion of the court in the case of Bunting v. Speek. A commissioner of the court filed an elaborate opinion, closing with a recommendation that the judgment of the district court be affirmed. The court, composed at that time of three members, ordered affirmance, Chief Justice Horton concurring. Justice Valentine filed a brief opinion, and concurred in the affirmance.. Justice Johnston simply concurred in the conclusion reached and the affirmance. The decision, therefore, is authority for this, and no more: A vested remainder to a testator’s heirs was created by the following clause of his will:
“I will and bequeth. to my beloved wife, Nancy Bunting, after all my just debts and liabilities are paid, all the rest of my estate, real and personal, to have and to hold them, together with all rights and privileges thereto belonging, during her lifetime, and then they are to descend to my legal heirs.” (p. 426.)
The decision has been approved in many subsequent cases, and is the law in all cases to which it applies. Portions of the commissioner’s opinion have been quoted many times, when pertaining to questions under decision, 'and usually have been sufficiently expressive of the thought intended to be conveyed. Some of the commissioner’s statements, however, 'are incorrect, and others are likely to mislead. The syllabus reads as follows:
“In a devise to a wife for life, with remainder to the legal heirs of the testator, to create a contingent remainder, the intent so to do must be expressed in words so plain that there is no room for construction.
“No remainder will be construed to be contingent which may, consistently with the words used and the intention expressed, be deemed vested.” (flf 1, 2.)
The decision was rendered in 1889, when courts and text writers were fond of extolling the intention of the testator as the “pole star” of all interpretation, and then turning their backs upon it if the testator created a contingent remainder. The language of the syllabus, and of the corresponding portions of the opinion, is too strong. Likewise, the statement of Justice Valentine is too strong. The true rule is, that in case of unfeigned ambiguity in the language used in creating a remainder, a construction is favored that will make the remainder a vested one; but such a construction must give way to the intention of the testator as expressed in the will.
In the opinion in Bunting v. Speek, supra, it was said:
“If it is clear that certain persons then living have a right to take possession of the property at the determination of the life estate, or at any time when it becomes vacant, then the remainder is a vested one.” (p. 429.)
Further on in the opinion a rule, or test, supposedly coordinate with the one just stated, is approved, to the effect that, if there is a person in being who has present capacity to take if the particular estate be presently determined, the estate is vested. This statement of the rule ignores uncertainty of event which may prevent a person from taking who, if the event were not to be awaited, would have present capacity to take. It has been productive of great confusion, and is misapplied by the present defendants.
The defendants cite the case of Klingman v. Gilbert, 90 Kan. 545, 135 Pac. 682. .The testator gave real estate to his daughter and two sons for life, and disposed of the remainders. With respect to a son’s share, the will, reduced to simplest terms, was this: Life estate to a son, remainder to his widow for life or until remarriage, remainder to heirs of his body, in fee. The question was whether the will was obnoxious to the rule against perpetuities, and the decision depended on when an estate would vest in the children of a son who died leaving a widow. The court said:
“Unless an intention to the contrary clearly appears, the members of a class in case of a*" gift to heirs of the testator are to be determined at his death. . . . This rule is the same when the heirs of other than the testator are referred to. ‘Where the gift is to the heirs or next of kin of another than the testator it ordinarily refers to the death of such other, unless the context of the will manifests that the class shall be determined at a different time.’ [’Citation.] For this reason, we think that in the present case the testator must be regarded as intending that at least all children of his sons who survived their father should share in the remainder, whether or not they survived their father’s widow.
. . . “Instantly upon the death of one of the testator’s sons, leaving a widow, the widow would take an estate for life (or until remarriage), and the persons would be in being — namely the children of the deceased son — who would have an immediate right to the possession of the property upon the ceasing of the widow’s estate. We therefore think that the children’s estate would vest at the death of their father, and the rule against perpetuities was not violated.” (pp. 550, 551.)
The remainder after the daughter’s life estate was disposed of as follows:
“If said daughter shall be survived by issue, her estate shall descend to such issue, but failing such issue, her estate shall descend to said sons and upon their death to the surviving widows, if any, of said sons for life or until they shall again marry and upon their death to the heirs of the body of said sons in fee simple.” (p. 547.)
The only matter presented and decided with reference to this devise was that of indefinite failure of issue. The subject of vested or contingent remainder was not mentioned. The decision was correct, but sheds no light on the present controversy.
The case of Salisbury v. Salisbury, 92 Kan. 644, 141 Pac. 173, is cited. A trust was created by will for benefit of the testator’s son Floyd; should Floyd die without issue, the fund to go to his wife for life, and then to the testator’s surviving heirs; should Floyd leave issue, the trust was to continue while they lived, and then to go to the testator’s surviving heirs. The question was whether the rule against perpetuities was violated. The question was not whether certain heirs of the testator would take or not, depending on sur-vivorship of someone. The testator would have heirs surviving him, surviving Floyd, and surviving Floyd's issue. There would always be someone to take the remainder in fee. The one uncertainty was, whether heirs would succeed to the fee after a life estate to Floyd’s wife, or after a life estate to Floyd’s issue. Under these circumstances the question was, when the estate of the testator’s heirs became vested in interest. The rule against perpetuities would be satisfied by a vesting at the time of the testator’s death or at the time of Floyd’s death. The rule would be violated only by a vesting at the death of Floyd’s issue, if he had issue. The will was ambiguous. In one provision the term “surviving heirs” evidently meant heirs surviving Floyd. It was considered reasonable that the same expression should have the same meaning when used again, and the rule was applied that, when language is ambiguous, that in- • terpretation will be preferred which will uphold rather than defeat the will, and which will result in early rather than remote vesting of estate. The decision has no application to the present controversy.
The defendants cite the case of Stevenson v. Stevenson, 102 Kan. 80, 169 Pac. 552. The will gave a life estate to the testator’s widow, and the remainder to his three sons, one-third each. Then followed this clause:
“In case any of my children aforesaid should die in their mother’s lifetime or in my lifetime leaving issue or descendants, I direct that his share shall not lapse, but shall be paid to such descendants in equal proportions.” (p. 81.)
Interpreting the peculiar wording of this clause, a majority of the court held the testator was not trying to make a devise over to meet a contingency, but was trying to fortify the remainders to his sons against a contingency. In the opinion it was said:
“It is the -law, and it always has been the law in this state, and in this country, and in England — notwithstanding an occasional vagrant decision to the contrary — that when nothing but the death of a remainderman can defeat the maturity and perfection of his title, the title in remainder is vested absolutely in him.” (p. 81.)
The defendants" say that nothing but death could defeat enjoyment of the Kirkpatrick trust property by John, Adelbert, Lillian, and Pearl.
The quoted statement was derived from the commissioner’s opinion in Bunting v. Speek, 41 Kan. 424, 21 Pac. 288, which quotes, on page 430, from the opinion in Blanchard v. Blanchard, 1 Allen, 227, as follows:
“Where a remainder is limited to take effect in possession, if ever, immediately on the determination of the particular estate, which estate is to determine by an event that must unavoidably happen by the efflux oj time, the remainder vests in interest as soon as the remainderman is in esse, and ascertained, provided nothing but his own death before the determination of the particular estate will prevent such remainder from vesting in possession. Yet, if the estate is limited over to another in the event of the death of the re-mainderman before the determination of the particular estate, his vested estate will be subject to be divested by that event; and the interest of the substituted remainderman, which was before either an executory devise or a contingent remainder, will, if he is in esse, and ascertained, be immediately converted into a vested remainder.”
Now if a remainderman must survive the precedent estate in order to take at all, and, if he does not survive, the remainder goes to another at termination of the precedent estate, the remainder is contingent on his survival, and the opinion in the Stevenson case so indicates:
“There is a loose expression sometimes used in discussing the law of contingent remainders, that such remainders are vested subject to their being divested, but to apply that expression to an ordinary vested remainder would create a new, illogical and inexact expression tending to befog an important phase of the law which has long been settled and well understood.” (Stevenson v. Stevenson, 102 Kan. 80, 82, 169 Pac. 552.)
In the commissioner’s opinion in Bunting v. Speek, it was said:
“An estate is given to A for years, remainder to B for years, remainder to, C for life, each of these persons being alive and having a perfect right to the land in the' order named, . . . they have each of them a vested remainder. . . . But if the estate to C had been in fee instead of for life, though he might not have lived to enjoy it, it would descend to his heirs, who would take it in his place, or whether for fee or for life, he might have conveyed it in his lifetime by deed, and his grantees would take the same rights in respect to it that he himself possessed.” (Bunting v. Speek, 41 Kan. 424, 447, 21 Pac. 288.)
In Blackstone’s classification, the second kind of contingent remainder was this:
“A remainder may also be contingent, where the person to whom it is limited is fixed and certain, but the event upon which it is to take effect is vague and uncertain. As, where land is given to A for life, and in case B survives him, then with remainder to B in fee; here B is a certain person, but the remainder to him is a contingent remainder, depending upon a dubious event, the uncertainty of his surviving A. During the joint lives of A and B it is contingent; and if B dies first, it never can vest in his heirs, but is forever gone; but if A dies first, the remainder to B becomes vested.” (2 Blackstone’s Commentaries, *170.)
As indicated in the opinion in the case of Purl v. Purl, supra, when the condition of surviving a life or other precedent estate is attached, the remainder is contingent; and the result is, to prevent misunderstanding and misapplication, the statement first quoted from the opinion in the Stevenson case shoulii be expanded to something like the following: A remainder vests in interest when a person is in being and definitely ascertained who will, if he lives, and whose heirs, devisees, or grantees will, if he does not live, have an indefeasible right to enjoyment, on termination of the precedent estate.
Other cases cited by the defendants do not require comment.
Having discovered the unmistakable intention of the testator from the will itself, we are in position to apply the rule against per-petuities. The court is relieved from demonstrating the effect of such application (see Klingman v. Gilbert, 90 Kan. 545, 548, 135 Pac. 682), by concession of the defendants. With commendable frankness they say in their brief:
“The rule of the common law, effective in Kansas, prohibits the postpone ment of the vesting of estates for a longer period than a life in being and twenty-one years and nine months thereafter. Only contingent future estates are prohibited. The period in this case is thirty years from the testator’s death. While in all human probability this is a shorter period than if he had provided for twenty-one years after the death of any of the children or grandchildren in being when he died, the cases seem to say that the law will not deal in probabilities, and if, by any circumstance, the period might be longer than that permitted, it is within the prohibition. It is possible that all the testator’s children and grandchildren might die within eight years and three months of the testator; if they did, the thirty years would be too long.”
The trust provisions of the will being void, to whom does the trust estate go?
The first item of the will has the same effect it would have if it were placed at the end of the will, and if, substituting the word “hereinbefore” for the word “hereinafter,” it read as follows:
“I give and bequeath all my personal property, and all other property of every kind and character not hereinbefore disposed of, to my son John E. Kirkpatrick, my daughter Lillian M. Kirkpatrick, my daughter Pearl I. Bair, and my son Adelbert B. Kirkpatrick, share and share alike.”
Therefore, the item is a residuary clause. Does the residuary clause carry the trust property to the residuary devisees, or did the testator die intestate with reference to the trust property? If he died intestate with reference to the trust property, James M. Kirk-Datrick takes a child’s share, under the statute of descents and distributions. The question is one of first impression in this court.
The court knows of no better essay on the subject of liberty of testation than that of Professor McMurray, contained in Wigmore Celebration Legal Essays. A few extracts from this essay will assist in bringing into relief from its historical background the question presented for decision:
“In England the will of personality received recognition at a rather early date, possibly because of the close association of the Norman and Angevin monarchs with the clergy. In general, it may be said that the unilateral, secret, revocable will had again become an institute of European law by the twelfth century. . . .
"With the re-establishment of the conception of the will, its modem history begins. Once grasped, the conception is developed in the various lands of Europe under the influence of the most diverse social and economic forces. One of the most fundamental influences upon the medieval law of wills was that exercised by the distinction between movables and immovables, so essential in the feudal law, and even yet producing effects in our own legal system. . . .
"So early as the ninth century, we read how a man who died and then re turned to life, divided his belongings into three parts, one of which he sold ("sealde”) to his wife, one to his children, and the third, which fell (“gelamp”) to himself, he divided among the poor. This was evidently an example of the post-obit gift of the Germanic law, and modern legal historians concede that the ambulatory will was unknown before the Conquest. It was scarcely recognized and enforced by the ecclesiastical authorities before the king’s courts are condemning not only the will of land but all post-obit dispositions thereof. Because the last will was usually made in articulo mortis, because a decedent should make some provision for his soul by bequests to the poor and to the church, the jurisdiction over wills was naturally assumed by the clergy, and by the thirteenth century they had established that monopoly in ecclesiastical courts over wills of chattels which existed until the abolition of their jurisdiction in civil matters in 1856 [1857], On the other hand, the royal authority drew to itself exclusive jurisdiction in all cases involving the title to land. As a consequence of the early division of jurisdiction and of the struggle between the lay and the ecclesiastical authorities, nowhere in Europe do we find the distinction between the succession to lands and to chattels more firmly marked than in England. Primogeniture becomes the rule of descent of lands, division between wife and children the rule of succession in the case of chattels; the church courts recognize and encourage the testament of chattels, -the king’s courts absolutely forbid the will of land, save where particular customs were of such force that they must be recognized. . .
“The settlement of the rule of male primogeniture and the denial of the power of testation over lands determined much of the future history of English law. . . .
"The denial of the power of testation over land lasted long. True, the device of feoffments to uses, beginning with the twelfth century, enabled landowners to deal very freely with their lands, even extending to •post-mortem dispositions. But it was not until 1540 that recognition was given to the will of lands, directly, though certain local customs had always preserved the institution. The abolition of uses in 1536, involving the destruction of the power of testation over land, was urged by the rebels of the north as one of their grievances against Henry VIII. The king Was doubtless quite willing to concede the right to devise lands. He'had just disposed of the Crown by will and inasmuch as it was then an established doctrine that the Crown devolved under the principles of the common law governing the inheritance of lands, must have been anxious to permit to his subjects the privilege which he had exercised. . . .
“For whatever reasons, the utmost freedom was given by the new statute to testators with respect to all lands held in socage tenure and two-thirds of all lands held by knight service. The subsequent abolition of knight service in 1660 made devisable all freehold lands held in estates of inheritance, other than estates tail. Copyhold lands were made devisable in 1815. Until 1837, however, the will of land retained traces of the post-obit gift. It operated only upon lands owned at the time of its execution. The Victorian Wills Act for -the first time brought the English will of land nearer to the Roman by making it operate on all lands which the testator owned at the time of his death.” (pp. 544-549.)
When land became devisable, the common-law courts maintained jurisdiction over the will of land, and kept wide the legal distinction between movables and immovables. The will of personalty was presented to- the ecclesiastical court, which ascertained capacity of the testator and the fact and validity of execution, admitted the will to probate, and appointed an executor. The will then, and not before, became evidence of title, and legatees took from the executor, and not from the testator. The will of real estate was not probated anywhere, but, if occasion required, was proved before juries in the common-law courts, and was offered in evidence as a muniment of title, the same as any other conveyance of real estate. If a will disposed of both land and goods, jurisdiction of the spiritual courts was confined to the disposition of personalty, and the conflict between lay and spiritual courts over such wills was one of the inducements to passage of the act of 1857, which deprived the ecclesiastical courts of their ancient authority, and created the court of probate.
Having jurisdiction to interpret the statute of wills and wills of land, the common-law courts applied to them the feudal doctrines, and particularly the doctrine of seizin. One of the most important consequences was that a testator could not make a will of land which he did not own at the date of the will. It was held the will, operating as a conveyance, spoke from its date, and did not embrace subsequently-acquired land. When a devisee of land died before the testator, the fiction was applied that the testator became repossessed. The lapsed devise took its place in the category of land acquired by the testator after date of the will, and the result was, a lapsed devise was not embraced in the conveyance. The residuary clause of a will being, like the other portions, a specific conveyance of property identified as of the date of the will, could not dispose of a lapsed devise, and it fell to the heir.
Wills of personalty having become' common at a time when to die intestate was probably to die unconfessed and with uncertain hope for future welfare of the soul (3 Holdsworth History of English Law, p. 418), and jurisdiction over wills of personalty having been retained by the ecclesiastical courts, such wills were always regarded as speaking from date of the testator’s death, and lapsed bequests fell into the residue and were disposed of by the residuary clause.
The foregoing sketches, in a very fragmentary way, the state of the law at the time the English colonies were founded in America. The Victorian Wills Act of 1837, which has been referred to, contained the following sections:
“Sec. III. It shall be lawful for every person to devise, bequeath, or dispose of, by his will executed in the manner hereinafter required all real estate and all personal estate which he shall be entitled to, either at law or in equity, at the time of his death. . . .
“Sec. XXIV. And be it further enacted, that every will shall be construed with reference to the real estate and personal estate comprised in it, to speak and take effect, as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.
“Sec. XXV. And be it further enacted, that, unless a contrary intention shall appear by the will, such real estate or interest therein, as shall be comprised or intended to be comprised in any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law or otherwise incapable of taking effect, shall be' included in the residuary devise, if any, contained in such will.” (1 Vict., Cap. 26.)
In the case of Clark v. Allanan, 71 Kan. 206, 80 Pac. 571, the first paragraph of the syllabus reads as'follows:
“From the time of their acquisition by the United States until 1868 the common law was prevalent over the separate portions of the region from which the state of Kansas was erected, under all civilized forms of governmental organization established for them; and from 1855 until 1868 the common law, not inconsistent with the constitution of the United States, the Kansas-Nebraska act, or statute law, was the rule of action and decision, any law, custom or usage to the contrary notwithstanding.”
In 1868 the present law became operative, which reads as follows:
“The common law as modified by constitutional and statutory law, Judicial decisions, and the conditions and wants of the people, shall remain in' force in aid of the general statutes of this state; but the rule of the common law, that statutes in derogation thereof shall be strictly construed, shall not be applicable to any general statute of this state, but all such statutes shall be liberally construed to promote their object.” (Gen. Stat., 1915, § 11829.)
The territorial legislature of 1859 passed a brief act relating to wills, sections 1 and 2 of which read as follows:
“Section 1. Any person of full age and sound mind may dispose, by will, of all his or her property, except what is sufficient to pay his or her debts, or what is allowed as a homestead, or otherwise given by law as privileged property.
“Sec. 2. Property subsequently acquired by descent or purchase, may also be devised, when the intention is clear and explicit.” (Chapter CXXXI, 1859, Compiled Laws of Kansas, 1862, chapter, CCXV.)
The state was admitted to the Union in 1861. The territorial statute remained in force until 1868, when an elaborate wills act was passed. The first section reads as follows:
“Any person of full age and sound mind and memory, having an interest in real or personal property of any description whatever, may give and devise the same to any person by last will and testament lawfully executed, subject nevertheless to the rights of creditors and to the provisions of this act.” (Gen. Stat. 1915, § 11752.)
The requirements relating to form, execution, revocation, probate, contest, and the like, are the same for all wills, whether of real or personal property or both, and generally wills of personalty are placed on the same footing with wills of real estate. Section 53 of the act of 1868 is still in force, and reads as follows:
“Any estate or interest in lands or personal estate or other property acquired by the testator after the making of his will, shall pass thereby in like manner as if held or possessed at the time of making the will, if such shall clearly and manifestly appear by the will to have been the intention of the testator.” (Gen. Stat. 1915, § 11809.)
In the case of Durboraw v. Durboraw, 67 Kan. 139, 72 Pac. 566, this section was interpreted. It was held the words “clearly and manifestly” are too vague to furnish a standard, and the statute does no more than require that the will disclose an intention that after-acquired property shall pass. In the opinion it was said a testator makes his will in contemplation of death; he understands that, until his decease, the will is ambulatory, and he may buy and sell at pleasure; but that, being written in anticipation of death, the language of the will must necessarily be referable to that event; and the rule was applied, which in this state needs no buttressing by authority, that a will must be construed to prevent intestacy with reference to any portion of the decedent’s estate, if that may reasonably be done.
The statute of descents and distributions makes no distinction between devolution of real property and personal property forming distributable portions of a decedent’s estate. In addition to prescribing some arbitrary formalities, the statute of wills placed some express limitations on liberty of testation, and there are some others. Aside from these limitations, it is the public policy of this state that the intention of the testator, expressed in his will, shall prevail. Indeed, the formalities referred to have for their object authentication of the testator’s desires. This concern of the law for the will of a testator, duly expressed, has prevailed throughout the state’s history.
Antiquity of a rule does not afford a reason for departing from it (Ewing v. Nesbitt, 88 Kan. 708, 129 Pac. 1131), but an ancient rule must be of social service now to command recognition, and the court is not concluded by a common-law rule unless it satisfies the conditions of the statute continuing the common law in force. (Cooper v. Seaverns, 81 Kan. 267, 105 Pac. 509). In this commercial age, when personal property forms so large a proportion of the wealth of the people, it would create an anachronism to include, in the law of wills, a rule founded on a distinction between movables and im-movables, derived from feudal times, when the whole social organization was based on landholding in return for service. Persistence of the rule invoked by the plaintiff was due in part to antagonism between two rival systems of courts, each struggling for supremacy. In the end, ecclesiastical jurisdiction in civil affairs was abolished, but the rule of the common-law courts was abolished first. Before the colonists came to America, the rule had to be supported by fictitious and artificial reasoning, originally devised to further ends foreign to the genius of our institutions. All the great political, economic and social forces which framed and sustained the rule were spent long ago. There is no policy in this .state to keep any ' class of property in a favored channel of inheritance as against a will, and when there is a will the presumption is against intestacy. The rule that a lapsed devise, in a will with a residuary clause, was not disposed of and went to the heir, contravened the intention of the testator, compelled him to die intestate with reference to a portion of his property when he had indicated a contrary desire, and is not in harmony with the policy underlying our law. The result is, this court could not, if called on to do so, state a satisfactory reason for making a present-day distinction between the destination of a lapsed devise and of a lapsed legacy, in a will containing a residuary clause applicable to each.
The plaintiff contends that section 53 of the wills act of 1868 (Gen. Stat. 1915, § 11809), already quoted, relating to devises of land acquired by a testator after making his will, is equivalent to section 24 of the statute of Victoria, but is not completed by an equivalent to section 25, and consequently the common-law rule is not abrogated. The court is of the opinion the difference between the two statutes consists in the method employed to remedy the same mischief, and not in. extent to which the common law was modified. The British statute dealt first with the offending rule of interpretation. A will of real estate spoke from its date. The primary consequence of the rule was, after-acquired property did not pass; a derivative consequence was, a lapsed devise went to the heir. The statute then dealt specifically with the derivative consequence. The Kansas statute dealt directly with the primary consequence of the rule of interpretation. Of necessity, the incompatible rule fell, and it no longer produces consequences in the law. Should there be some unperceived difference in the' effect of the two statutes, the common-law rule, that the heir takes a lapsed devise and not the residuary legatee, has nevertheless been abrogated by the Kansas statute.
The rule of the common law was not predicated on impotency of the residuary clause of a will as such, but on the fact a man could devise only what he had when the will was made. A residuary devise was as much a specific devise as a particular devise. (Howe v. Earl of Dartmouth, 7 Ves. 137, 147; Broome v. Monck, 10 Ves. 597, 605. Normally, a lapsed devise should have passed by the residuary clause, because the property was owned both at the date of the will and at date of the testator’s death; but the conveyance theory of a will was carried to its logical conclusion.
“A will, be it by tlie custom or statute, is still a disposition of the estate and lands he then has; but no man can bequeath lands or estate which he has not at that time; and though a will do not take effect to transfer the estate until the death of the testator, yet it is a will and disposition of his estate, even at the time of making such will; for from that time it is a will, and a disposition of what he devises away. There is no act between the making of a will and the death of the testator, necessary to be done to make this a perfect and complete will; no writing, no publishing, nor any other act whatsoever; it is subject indeed to a revocation, during the testator’s life, and is to take effect only |rom the time of his death;' but it is a will, and a disposition of the estate bequeathed from the time of the making thereof.” (Holt, Chief Justice, in Brunker v. Cook, 11 Mod. 121, 123, Q. B., Trinity Term, 6 Anne.)
The result was that, when the devisee died before the testator, the testator reacquired what he had disposed of, in the same legal sense as if he had purchased after making his will. Under the Kansas statute, real estate acquired by the testator after making his will, passes if he so indicates. At common law, real estate embraced in a lapsed devise was, for purposes of testation, real estate acquired by the testator after making his will. The statute, aided by this doctrine of the common law, defeats the heir if there be a residuary clause in the will.
There are common-law cases making a distinction between lapsed devises and devises ineffectual or void from the beginning, and holding that a void specific devise passes by the residuary clause. The subject was examined at length by Chancellor Walworth, in the case of Van Kleeck v. The Reformed Dutch Church, 6 Paige Ch. (N. Y.) 600, who reached the conclusion that a void specific devise does not pass by the residuary clause, but goes to the heir. The learned chancellor conceded that a general residuary bequest in a will of chattels would carry not only property which the testator did not attempt to dispose of otherwise, but also all .personalty which at the testator’s death he had not effectually disposed of by the will; but it was said the heir at law can be disinherited only by express words or by necessary implication. In support of the ruling, which disregarded the presumption against intestacy, the chancellor marshaled in masterly fashion the cases in which the English common-law courts had displayed their intolerance of wills of land, and their solicitude for the primogenial heir; and if the ruling be the law in this state, it is for the fundamental reason that a will of land was originally a specific appointment and disposition at date of its making.
In closing his discussion of this subject, Chancellor Kent, writing-in 1830, said:
“The alteration, of the law, in New York, Virginia, and those other states, making the devise operate upon all the real estate owned by the testator at his death, may produce the effect of destroying the application of some of these distinctions, and give greater consistency and harmony to the testamentary disposition of real and personal estates.” (4 Kent’s Commentaries, *542.)
The New York statute referred to reads as follows:
“Every will that shall be made by a testator, in express terms, of all his real estate, or in any other terms denoting his intent to devise all his real property, shall be construed to pass all the real estate, which he was entitled to devise, at the time of his death.” (2 Consol. Laws of N. Y. 1714.)
The statute is the substantial equivalent of section 24 of the statute of Victoria, and of section 53 of the wills act of 1868 of this state. Chancellor Walworth’s decree was affirmed by a divided court, in the case of Van Kleeck v. Dutch Church of New York, 20 Wend. 457, decided in 1838. The will under consideration antedated the New York statute. One of the senators, in delivering his opinion, referred to the statute and Chancellor Kent’s observation upon it, and said:
“The provision of the statute was intended to embrace real estate acquired subsequent to the making of the will. The principle adopted is a broad one, and may operate to break up the distinction which now exists between lapsed devises and lapsed legacies. . . .” (p. 499.)
The predictions came true in the state of New York:
“Contrary to what prevailed at common law the rule in this state now is as' the result of statutory enactment that a will1 of real estate speaks as of the time of the testator’s death and that the application of the residuary clause of a will to lapsed devises is governed by the same principles as in the case of lapsed legacies. [Citations.]
“As the result of the rejection by the Emmanuel Baptist Church of the devise in its favor that devise lapsed, either becoming by relation back void db initio or never taking effect at all according to the theory adopted in the case of a rejected devise. Unless, therefore, it is covered by the' residuary clause the testator has died intestate as to this real estate. It is a familiar principle that partial intestacy is to be avoided when possible and that a residuary .clause of general terms ordinarily will be construed as covering lapsed or invalid legacies and devises and is not to be restricted to property not covered by specific provisions unless such intent on the part of the testator is clearly to be drawn from the remainder of the will.” (Albany Hospital v. Albany Guardian Society, 214 N. Y. 435, 445.)
As indicated above, by virtue of the statute of this state, a lapsed devise will pass by a general residuary clause. If a devise, void when made, does not so pass, we have this situation: If a devisee die without issue the day before the will is made, the devise goes to the heir; if he die the day after the will is made, the devise goes to the residuary devisee. The court is of the opinion the statute of wills was designed to give consistency and harmony to testamentary dispositions of real and personal property, and annihilated the ultimate premises from which sophistical reasoning could deduce such incongruous conclusions.
In this instance, the intention of the testator is too clearly manifested to require discussion. The scheme of a trust to John, Adel-bert, and Lillian, for the benefit of John, Adelbert, Lillian, and Pearl, who were to receive the income from land for thirty years and then receive the land, was invented purely as a restraint on alienation. There would be good ground for saying that a gift for years of the profits from land, and then of the land in fee, was a present gift of the land itself; and avoidance of the trust merely leaves the property, unfettered, with those whom the testator desired should enjoy it.
As might be expected, the legislatures and courts of the states of the United States have dealt with the subject of lapsed and void devises in various ways. (Case note, 44 L. R. A., n. s., 789.) With great industry, counsel for the respective parties have analyzed the statutes and the decisions, in their briefs. Counsel for John E. Kirkpatrick submits the following summary, corrected to meet criticisms by counsel for plaintiff of a previous summary:
“SUMMARY.
“Every state in the Union except Texas, Arkansas, and New Mexico, has adopted section 24 of the English Wills Act in some form.
“States having adopted section 25 of the English Wills Act:
District of Columbia,
California,
North Carolina,
Pennsylvania,
Rhode Island,
Virginia,
North Dakota,
South Dakota,
Oklahoma,
Utah,
West Virginia.
“States holding in their residue: decisions that a void or lapsed devise goes to the
Maine,
Missouri,
Tennessee,
New Jersey,
Indiana,
Iowa,
Ohio,
Nebraska,
Massachusetts,
Illinois,
New York,
District of Columbia,
California,
North Carolina,
Pennsylvania,
Rhode Island,
Virginia,
West Virginia.
“The first eleven states, from Maine to New York, so hold without section 25.
“States having statutory provision that a void or lapsed devise shall go to the heir: Alabama, Kentucky, and in some instances Georgia.
“States having neither section 24 nor section 25 of the English Wills Act: Arkansas, New Mexico, Texas, of which Arkansas holds void devises go to the residue and Texas seems to hold contra.
“States having section 24 of the English Act and holding that a void devise goes to the heir at law: Maryland (although the court laments it); Connecticut (although the court laments it); Mississippi (in a case decided before the Civil War).”
It is not necessary to extend this opinion by reviewing the summary. The weight of reason and authority in the United States favors the residuary devisee’s title to a lapsed or void devise, in the absence of a statute preferring the heir, and without a statute equivalent to section 25 of the act of Victoria.
The judgment of this court is .that the interests dependent on survival of the thirty-year trust were contingent, and not vested. The trust provisions of the will violated the rule against perpetuities, and were void. The real estate, ineffectually devised to trustees, was disposed of by the residuary clause of the will to the residuary devisees. James M. Kirkpatrick takes nothing by the will except the. legacy of one dollar, and nothing as heir.
The judgment of the district court sustaining the demurrer to the petition is affirmed.
LAST WILL AND TESTAMENT OF WILSON B. KIRKPATRICK.
I, Wilson B. Kirkpatrick, of Shawnee County, state of Kansas, being of sound mind and memory, do make and publish this, my last will and testament, hereby revoking all former wills heretofore by me made.
1st. I give and bequeath all my personal property, and all other property of every kind and character not hereinafter disposed of, to my son John E. Kirkpatrick, my daughter Lillian M. Kirkpatrick, my daughter Pearl I. Bair, and my son Adelbert B. Kirkpatrick, share and share alike.
2nd. I give and bequeath to my daughter Lillian M. Kirkpatrick all of the household goods in our home at 800 West Sixth Street, in the city of Topeka, Kansas.
• 3rd. I give and bequeath to my son James M. Kirkpatrick, the sum of one dollar ($1.00) to be paid by my executors as soon as they have qualified.
'4th. I give and bequeath to my son John E. Kirkpatrick, the real estate being Lots No. 201 and the north half of 203 Lincoln Street, known as street number 621 Lincoln Street, in the city of Topeka, Kansas.
5th. I give and bequeath to my daughter, Pearl I. Bair, the real estate being Lot No. 234 Taylor Street, known as street number 716 Taylor Street, in the city- of Topeka, Kansas, with the understanding that the same shall not be disposed of or encumbered by her for fifteen years after my death.
6th. I give and bequeath jointly to my daughter Lillian M. Kirkpatrick and my son Adelbert B. Kirkpatrick, the homestead being lots No. 74 and 76 Sixth Avenue, West, known as street number 800 West Sixth Avenue, in the city of Topeka, Kansas. It is my desire that this property be kept in the family as the original homestead, as long as it is practicable to do so.
7th. I give and bequeath unto my sons John E. Kirkpatrick and Adelbert B. Kirkpatrick, and my daughter Lillian M. Kirkpatrick, as trustees, in trust for my daughters Lillian M. Kirkpatrick and Pearl I. Bair, and my sons John E. Kirkpatrick and Adelbert B. Kirkpatrick, the following described real property situated in Topeka, Shawnee County, Kansas, to-wit:
Lot 103 East Sixth Avenue, known as the Sixth Avenue Hotel; the west 50 feet of lots 211, 213 and 215 Quincy street, known as street numbers 112 and 114 East Seventh Street; and lots 217, 219, 221, 223 and the north 15 feet of lot 225 Quincy Street, being known as street numbers 111, 113, 115, 117, 119 and 121 East Seventh Street; which properties shall be held in trust by said trusteees for the benefit of the trust hereinafter described, for a term of thirty (30) years after my death, at which time said properties shall descend as hereinafter provided. Said properties shall be carefully looked after and managed by said trustees, and the proceeds of the same shall be distributed as follows:
The net income divided monthly equally between the above named John E. Kirkpatrick, Adelbert B. Kirkpatrick, Pearl I. Bair, and Lillian M. Kirkpatrick, and their heirs, except heirs or children by adoption, and except as hereinafter provided.
In case of the death of my daughter Pearl I. Bair, before her son, Vernon K. Bair, reaches his fortieth birthday, I 'direct that the said Vernon K. Bair shall as long as his father Jacob K. Bair lives, receive but one-half of his mother’s share of the proceeds of said properties in trust; that my son-in-law Jacob K. Bair, as long as he lives, shall receive the other half. After the death of the said Jacob K. Bair, if he survives his wife, the entire share of my daughter Pearl I. Bair shall be paid to her son Vernon K. Bair, until this trust terminates. In case of the death of both Pearl I. Bair and Jacob K. Bair before the termination of this trust, the entire share of Pearl I. Bair shall be paid to the said Vernon K. Bair, unless other children hereafter be born to said Pearl I. Bair, in which case I direct that said income should be divided equally among all of the children of my daughter Pearl I. Bair.
This trust being created for the benefit of the majority of the trustees, I direct that the said trustees be not required to give bond and that they perform said trust without compensation, except that they see that any trustee performing any unusual duty shall receive expenses incidental to the performance of said duties. Said trustees are authorized to manage said properties according to their best judgment, but shall have no power to encumber or sell said properties during the term of their trusteeship. The income from said properties shall belong to the beneficiaries of said trust absolutely, to use or invest as they see fit as their own property. Said proceeds so paid to said beneficiaries of said trust shall be the net proceeds after the payment of all taxes, charges, assessments and expenses for the upkeep and repair of said properties.
If, prior to the termination of the trust, any one of my above named children shall die not leaving any issue or children, I direct that the share of said child in said income from said real estate shall be divided equally by the trustees among the other surviving children, except adopted children, except as hereinafter provided. And by the word “issue” I mean children or grandchildren of their own blood, and not adopted children or grandchildren.
After the termination of the trust herein defined, I give and bequeath all of the real estate above described and made the subject of said trust equally, share and share alike, to my two sons John E. Kirkpatrick and Adelbert B. Kirkpatrick, and my two daughters Lillian M. Kirkpatrick and Pearl I. Bair, or the survivors of such four children. If, at the termination of said trust, any of the four children shall have died without issue, the interest of said deceased child shall descend equally to such of said four children as still survive, or their spouses or children, except adopted children. And I direct that in case any of said four children at the time of the termination of this trust shall have died leaving heirs, the interest of said child shall descend to the spouse or children of said deceased child, except adopted children, in the proportion if [that] each of said four children would receive if living, or that the share of said deceased child shall descend to his widow and children or both in the proportion that such child would have inherited had he or she survived-.
It is my further will and I hereby direct that in case of the death, resignation or removal of any one of said three trastees it will not be necessary to fill such vacancy while any two are acting and qualified as said trustees. In case of the death, resignation or removal of two of said trustees, it is my will and I hereby direct that one other trustee shall be appointed and qualified so that there shall always be at least two such trustees, and such additional trustee shall be some person selected bv the unanimous approval of the beneficiaries of this trust, to wit: John E. Kirkpatrick, Adelbert B. Kirkpatrick, Lillian M. Kirkpatrick, Pearl I. Bair, and their heirs, except heirs or children by adoption.
In case of the death of my son John E. Kirkpatrick, unmarried, prior to the termination of this trust, I give and bequeath to the adopted children of my said son John E. Kirkpatrick, to wit: Kenneth Kirkpatrick and Margaret Kirkpatrick, the sum of $2,000 each, to be paid to them by the appointed trustees herein out of the proceeds of the buildings above described on East Sixth and Seventh streets and made the subject of this trpst, at the rate of $50 per month until said sums shall be paid in full, and said bequests of $2,000 each to said children shall be in full of all claims of said adopted children against my estate, out of the trust fund.
I hereby designate and appoint my sons John E. Kirkpatrick, Adelbert B. Kirkpatrick, and my daughter Lillian M. Kirkpatrick as the executors of this my last will and testament, to serve without bond.
I hereby revoke all former wills by me at any time heretofore made. | [
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The opinion of the court was delivered by
Dawson, J.:
The defendant was convicted of embezzling $412 belonging to one Henry McConnell, and appeals.
Briefly stated, the circumstances were these: The defendant was the managing partner in a firm of mortgage brokers, Perkins & Company, in Lawrence. The firm sold a note and mortgage' on some Iola property to Henry McConnell. Defendant was the mortgagee, and he assigned the mortgage to McConnell. The note- was paid by draft to Perkins & Company on May 4, 1920. The proceeds of the draft were deposited in a Lawrence bank to the credit of defendant’s firm, and defendant released the mortgage of record. McConnell was not apprised of the payment of the note. On the contrary defendant’s firm paid him interest on -the money up to and including the interest due in April, 1921. Failing to receive any payment of interest in October, 1921, he went to the office of Perkins & Company, and there ascertained that the mortgage had been paid off in May, 1920. McConnell made demand on defendant for his money. Defendant answered: “I haven’t the money now. I will pay it sometime.”
The conviction of defendant was pursuant to section 134 of the crimes act (Gen. Stat. 1915, §3461), which provides:
“Any agent . . . who shall embezzle or.convert to his own use . . . without the assent of his employer, any money . . . belonging to any such person, . . . which shall have come into his possession or under his care by virtue of such employment, office or trust, shall upon conviction thereof be punished, . . . or if any agent shall, with intent to defraud, refuse or neglect to deliver to his employer ... on demand, any money . . . which may or shall have come into his possession by virtue of such employment, office or trust, . . . [exceptions] ... he shall upon conviction thereof be punished, . . .”
It is first urged that there was no employment of deféndant by McConnell and that defendant was not the agent or employee of McConnell. But the circumstances did disclose a relationship of employment, office or trust between defendant and McConnell. Certainly defendant was McConnell’s agent for the purpose of collecting the principal and interest on the note; he cannot be' heard to deny it when he assumed and exercised the function of collection agent for McConnell and did collect the money. In The State v. Spaulding, 24 Kan. (Dass. Ed.) 1, syl 1, ¶ 4, it was said:
“When one assumes to act as agent for another, he may not, when challenged for those acts, deny his agency. He is estopped, not merely as against his assumed principal, but also as against the state. One who is agent enough to receive money, is agent enough to be punished for embezzling it. An agency de facto, — an actual even though not legal employment, — is sufficient.”
It is also urged that the relationship of defendant and McConnell was that of mere debtor and creditor, and while there may have been some evidence to that effect, yet McConnell testified to the contrary :
“Q. Didn’t they tell you in the first conversation that you had there at the office, in substance, on these mortgages that were turned over to you, we pay the interest, whether the maker of it pays it or not? A. No, sir; no word was said that way., They remit the interest, but they never suggested that they pay the interest whether the maker did or not.
“Q. And they also said, did they not, that when, the mortgage was paid, or if it was paid before maturity, or anything of that kind, that they carried that fund for you and pay you the interest on it right straight through? A. No, sir, they didn’t state that. That wasn’t stated at all, about the — ”
Under the foregoing evidence, the question whether defendant . had embezzled or merely borrowed McConnell’s money was for the jury to decide.
It was further contended that there was.no evidence that the mortgagor paid the money to Perkins & Company, as the agent of McConnell, and that it was paid to defendant merely because he was the record mortgagee. The mortgagor probably knew nothing of the relationship between defendant and McConnell, but defendant knew that relationship very well. He knew the money belonged to McConnell, and notwithstanding that fact he applied the money'elsewhere and discharged the mortgage of record, which not only discharged the debtor completely but fraudulently deprived McConnell of the money.
But it is argued that the money was not converted to the individual use of defendant. That contention is unsound. When the money was devoted to the bank account of the partnership of which defendant was a member and in which he was beneficially 'and personally interested, without the assent of the owner, there was a conversion of the money to his own use within the meaning of the crimes act.
Defendant also complains of the admission of incompetent and prejudicial evidence. This referred to testimony - of certain witnesses who had conversations with defendant touching his disposition of other notes and mortgages which belonged to various individuals and which defendant Perkins had collected and discharged of record without paying the proceeds to the assignees entitled thereto. One of these witnesses narrated a typical incident:
“A. I went to see him in reference to a mortgage that was made by Minnie Herb and husband of Reno County, to the Perkins Trust Company for $1,000 and assigned to Mary E. Strong. I told him. that my information was that the mortgage had been paid, and that it was released, and he said it had been, and I asked him where the money was, and he said he didn’t have it.
I asked him when he received the money, and he said he had received it he presumed before he released the mortgage and it has been released, I couldn’t say when, but some two or three years. It had been paid and the mortgage released. I asked him why he didn’t turn the 'money, pay that money over to Mary E. Strong.”
Counsel for Defendant: “We object to that as incompetent, irrelevant, and immaterial.
“The Court: Overruled.
“A. And he said that the custom of Perkins and Company was to hold the money until they got a suitable mortgage and then reinvest it, and I told him he had been holding this money now two years or three years and he had certainly had time to either pay the money over or reinvest it, and I asked him if he had any instructions from Mary E. Strong to reinvest it, and he said he didn’t. . . .
“I talked with him about all of these mortgages. And he said they had been paid, and that he would settle with my clients as soon as money loosened up and times got better, but that he didn’t have any money then, and I says, ‘Frank, don’t you know you are guilty of embezzlement, and that they will get you for this, somebody will get you.’ And he says, T suppose they will.’ Now then, there was a case of a man in El Paso, Illinois, — ”
Counsel for Defendant: “Now, just before you go into that, I move the answer relating to this mortgage of Strong’s be stricken out as incompetent, irrelevant, and immaterial, and not tending to prove any issue involved in this action, and simply a voluntary information on the part of the witness.
“The Court: Overruled.
This evidence showing defendant’s usual mode of doing business was competent to prove intent, absence of mistake or accident, and that the withholding of the money from its owner and its disposition to the concerns of the partnership was pursuant to an unauthorized and consequently unlawful method of business practiced by the defendant. (See citations and excerpts in The State v. King, 111 Kan. 140, 144-150, 206 Pac. 883.) Furthermore, the trial court, in its instructions to the jury, carefully limited the significance to be attached to this testimony, thus:
“There is some testimony before you, gentlemen, in regard to the defendant having committed acts similar to the one charged here with property belonging to parties not connected with this action. This evidence is admitted, gentlemen, and is for your consideration only on the question of the intent of the defendant, and it should not be considered by you in determining any other element of the offense charged except the element of the intent of the defendant.”
Complaint is made of this testimony:
“A. And in making that [similar transaction] up with F. M. Perkins, he told me that that mortgage had been paid, as I recollect it, in 1915. I asked him why no accounting had ever been made to Mr. McGinnis, the owner of it, and he simply told me that the matter had been overlooked. I don’t want to volunteer any information here, but I then suggested to him that I hardly thought that was overlooking the matter, and he then made some explanation about the customs of their business, told me it was the custom of loan companies. I took exception to that, on that occasion and on other occasions, for I had had some experience in the loan business myself, and wo had a discussion about that.”
Counsel for Defendant: “I move that the argument of the witness be stricken out.
“The Court: Overruled.”
Here we think the court made a wrong ruling; the voluntary information of the witness and his exception to defendant’s statement, and his statement as to his own experience in the loan business, should have been stricken out; but under the circumstances of this case, and after considering the defendant’s own testimony as to his method of doing business we do not regard the ruling as prejudicially erroneous.
Another error is assigned on the exclusion of defendant’s testimony:
“[Defendant], — The first time I knew McConnell had not got a new mortgage was when Mr. Dodds called my attention to it.
“I then looked it up and found that the mortgage had been paid off but had not been taken up; that is, we had not made the exchange.
“Q. You had not made any exchange? A. You understand that was our custom — to replace a paid-off loan by another loan. It was always our custom. We had exchanged hundreds of thousands of dollars that were entirely satisfactory. The people wanted it that way.
“[Counsel for state]: If the court please, we ask that that be stricken out as a conclusion on the part of the witness and not responsive to the question.
“The Court: It is stricken out.”
This evidence might have been permitted to stand, but elsewhere the record shows that defendant testified both on direct and cross-examination as to his method of doing business; and here it cannot be denied that the objection “not responsive to the question” was well taken.
A final contention is that the trial court erred in its instructions touching defendant’s employment and agency under the section of the crimes act for whose violation he was prosecuted, but this is disposed of under the discussion of the first assignment of error. The only practical defense which could have availed the defendant was the one clearly defined in the trial court’s instructions:
“If you should find from the evidence that Henry McConnell authorized or permitted F. M. Perkins, Perkins & Company or some one acting on behalf of them or either of them, to use said fund for investment or otherwise, or if you should find as a matter of fact that the defendant F. M. Perkins or Perkins & Company were holding said sum or any part thereof for use by authority or permission of Henry McConnell, then the defendant would not be guilty of the crime charged in this count of the information, and he should be acquitted thereof.”
The record contains no error and the judgment is affirmed. | [
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The opinion of the court Was delivered by
BueCH, J.:
The action was one to cancel a 99-year lease of real estate in the city of Hutchinson, executed by an agent of the plaintiffs, and for damages. The agent answered, and asked judgment for a commission for negotiating the lease. The lessee answered, and asked, in the alternative, for confirmation of the lease, or for specific performance of contract to lease. Other defendants answered, and judgment was -rendered for the plaintiffs, on the pleadings, ffor cancellation of the lease. The defendants affected by the judgment appeal.
Isaac Goldberg, of Kansas City, Mo., owned the real estate. The McNaghten Investment Company, of Hutchinson, Kan., was agent. E. W. McNaghten, of Hutchinson, was president of the company, and Mahlon L. Ely, of Hutchinson, was the representative of the company who negotiated the lease. J. C. Wolcott, of Kansas City, Mo., was the lessee. Ely is his nephew. Ely went to Kansas City for the purpose of interesting Goldberg in leasing his lots on the 99-year plan, and called on Goldberg at his home. Wolcott and Goldberg had lived in Hutchinson, were well acquainted, and Wol-cott accompanied Ely to introduce him to Goldberg. The interview resulted in execution of the following instrument:
"listing contract.
“For consideration of one dollar ($1.00), the undersigned hereby appoints The McNaghten Investment Company, exclusively, agent for six months to lease the following property in the city of Hutchinson, Kansas: 1st and 2nd floors, location lot 27, N. Main St., original townsite, on the basis of the fig- ' ures as given on the back of this card.
Witness J. C. Wolcott Owner Isaac Goldberg
Date June 1, 1921 Annie Goldberg
[on back]
“A 99-year lease to start upon acceptance on the following terms: $4,000 net annually until Dec. 31, 1925, payable monthly. For the balance of the term of 99 years, $6,000 net annually, payable monthly. The lessee to pay all taxes and expenses whatever.
“One year’s rent to be paid upon signing of lease. Two year’s rental to be put up as a surety bond for lease. A $30,000 bond to be put before building is demolished.
“Commission $1,625 to be paid upon signing of the lease.”
• Ely returned to Hutchinson, and set about finding a tenant. It occurred to him his uncle might be interested, and he wrote to Wol-cott. Wolcott sent a telegram, asking him to come to Kansas City. He went to Kansas City, and on June 7 Wolcott accepted the terms proposed in the listing contract. When negotiating with Goldberg, Ely had with him a 99-year lease of real estate from P. J. Leimbach" to Herbert Wolff, of Kansas City, Mo., and it was orally agreed the proposed lease should be of the general tenor of the Leimbach lease, except for one inapplicable provision. The investment company executed and delivered to Wolcott a lease, bearing date of June 7, embodying the specific terms of the listing contract and the general terms of the Leimbach lease, with the exception noted. Wolcott placed the lease on record, and made the necessary tenders, which he renewed in his answer. The foregoing facts appear in the answers and, for purposes of the motion for judgment on the pleadings, are to be taken as true.
The petition was drawn without regard to the provision of the civil code requiring a statement of the facts constituting the cause of action in concise language, without' repetition, and is difficult to summarize. It alleges that the -listing contract was procured “by means of false pretenses and false representations as follows, to wit.” Then follows a statement, barren of actionable representation except as contained in the following extract:
“Ely wrote upon the said card a description of plaintiff’s property in Hutchinson, Kansas, relating to the first and second floors, and dated the same. He also wrote upon the back the matter as shown in the preceding paragraph. He gave the card to plaintiffs to read. Thereupon the plaintiffs informed the said defendant Ely in the presence of J. C. Wo'lcott, that they could not do any business with him. That they had not consulted their sons or children nor lawyer. That they could not think of making a lease upon their property without doing so. Thereupon the said Ely assured the plaintiffs that the contract was only a listing contract, making The McNaghten Investment Company the agents for the plaintiffs to find a person who was willing to lease the property for 99 years; that for that reason, it was not necessary for plaintiffs to consult their children or their attorney regarding the lease; that .they would have ample time to do so before signing the lease. That thereupon the said J. C. Wolcott represented and stated to the plaintiffs that he thought the making of a 99-year lease was a good deal for the plaintiffs and a good way for them to handle their property. That he was handling his property that way; that he had made or was going to make that kind of a lease on his property at 14th and Main, Kansas City, Mo. The plaintiffs had great confidence in Mr. Wolcott’s judgment and friendship. Plaintiff Isaac Goldberg had conducted his business in Hutchinson, Kansas; for more than twenty years in the same block where Mr. Wolcott was in business and was very friendly with him. The long friendship that had existed between them created in the minds of plaintiffs great confidence and trust in the advice and judgment and friendship of the defendant, J. C. Wolcott, and the plaintiffs at the time believing the said J. C. Wolcott had no interest in the matter, except to advise them as a good friend and counsellor, did thereupon sign the said writing designating The McNaghten Investment Company as their agent for the purpose of finding someone who would be willing to make a 99-year lease satisfactory to the plaintiffs and which they would sign after consulting their children and their attorney.”
The listing contract was handed to Goldberg to read. He does not allege he was unable to read or understand the instrument, and assurance as to its legal effect was not actionable. Therefore/ the fraud consisted in inducing Goldberg to sign the instrument without taking desired, and to him indispensable, advice, by misrepresenting the character of the instrument, and by representing he would have ample opportunity to take advice before signing a lease. No fiduciary relation on the part of Wolcott toward Goldberg is disclosed here or elsewhere in the petition, and there is no allegation that what Wolcott said was not true.
The false pretense resorted to was this: McNaghten and Ely and Wolcott entered into a conspiracy to obtain for Wolcott a 99-year lease of Goldberg’s lots. Ely really represented Wolcott in procuring the listing contract from Goldberg. Ely and Wolcott had a secret understanding that they would conceal the true purpose of their mission when they went to Goldberg’s house. They did conceal their purpose from Goldberg and, “by the means aforesaid,” induced the plaintiff to sign the listing contract. There is added, therefore, to false representations, concealment of the capacity in which Ely and Wolcott were acting, and it is alleged Goldberg would not have dealt with his old and trusted friend, Wolcott, if he had known they were dealing at arms length.
The petition alleged that the authority conferred by the listing contract was revoked at Goldberg’s house in Kansas City on June 7, and that the lease was prepared and signed on June 11, but was dated back.
Allegations of conspiracy, of procuring the listing contract as-agent of Wolcott, of execution and delivery of a lease without authority and after revocation of authority, and allegations of other conduct showing service of Wolcott instead of Goldberg and bad faith toward Goldberg, were sufficient to show forfeiture of the agent’s commission.
The McNaghten Investment Company and E. W. McNaghten answered jointly. Ely and Wolcott filed separate answers. The scheme of the answers was this: Each defendant presented his part in the transactions embracing procuring the listing contract, and execution, delivery and recording of the lease to Wolcott. In that way the entire petition was fully traversed, and a state of facts Was presented which not only negatived conspiracy, false representation and pretense, and bad faith, but entitled the agent to his commission, and entitled Wolcott to his lease, if his views of the law be sound. The only substantial defect in the scheme of the pleadings was omission of general denials. The answer of the agent did not formally deny false pretense, false representation,, and revocation of agency. Conspiracy and collusion to make false pretenses and representations were expressly denied. Good faith in acting for the plaintiff was alleged, and the procuring of a tenant, under authority of the listing contract, ready, able and willing to take the lease' on the terms proposed, was alleged. Like the petition, the agent’s answer contained statements of conclusions respecting nature of the listing contract, and extent of authority it conferred. The manifest purpose was to meet the issues tendered by the petition and, under the circumstances, the slip in pleading, if there be one, ought not to. defeat recovery of the agent’s commission. There were, perhaps, technical imperfections in other portions of the answers, but the contentions of the parties were fully and clearly disclosed, and the court is concerned with the substance of those contentions, rather than with lack of artistry in presentation.
What was the extent of the agent’s authority, conferred by the listing contract?
The heading “Listing Contract,” is not interpretative. The nature of the contract must be determined from what was written under the heading.
The words “to lease,” do not of themselves indicate authority to conclude a contract of lease or to execute a written instrument of lease. In the case of Brown v. Gilpin, 75 Kan. 773, 90 Pac. 267, it was contended an agent appointed “to sell” real estate had power to bind his principal by a contract of sale. The court reviewed authorities, English and American, and reached the conclusion the agency was limited to finding a purchaser. The decision was foreshadowed by earlier ones, and has since been approved and fol lowed in a number of cases. The court still regards the decision as sound in law. Besides that, social interest is involved. Real-estate brokers may conduct negotiations, and they will be protected in the matter of compensation for services rendered pursuant to authority, but the making of contracts which will carry title to real estate should be left to owners, unless they intentionally and clearly delegate the function to others. There is nothing in the nature of a lease for 99 years which makes it necessary to interpret an agency to lease differently from an agency to sell, and the court holds that, so far as the words “to lease” characterize the agency created by what, for convenience, has been called the listing contract, it merely authorized the finding of a tenant, and did not embrace concluding or executing a contract of lease.
The meaning of the instrument must be determined by consideration of all its provisions. It contained a provision that the proposed lease should start on acceptance of the stated terms. A first impression might be that acceptance of terms, expressed to the agent by a tenant he procured, would close a contract. Reflection shows, however, that the provision relates to description of lease, and not to scope of authority. It merely fixed beginning of the term, and bore no more relation to the grant of authority than provision for length of term or annual rent.
Nothing else in the contract indicates an intention to confer authority on the agent to contract on behalf of the principal, and the agent’s authority was limited to procuring someone ready, able and willing to take a lease on the terms proposed.
' Wolcott contends the listing contract itself constituted an offer by Goldberg to lease to anyone who, by procurement of the agent, accepted the proposed terms. The listing contract contained all the data essential to a contract of lease. It was not necessary that stock terms, common to such instruments and implied by law, should be mentioned. According to the answer of Ely, the terms of the Leimbach-Wolf lease were to be followed. Therefore, the listing contract was a sufficient memorandum, signed by the party to be charged, to satisfy the statute of frauds, and if it did have the effect of a general offer to lease, oral acceptance of the offer completed an enforceable contract to lease.
Wolcott’s contention is based on the decision in the case of Willey v. Goulding, 99 Kan. 323, 161 Pac. 611. The opinion in' that case discloses negotiations relating to terms on which Goulding, a tenant, might continue to occupy a building. His lease expired on February 1. Fulton, the owner, was a nonresident, and was represented by a resident agent. On January 10 Fulton wrote to the agent, directing him to notify Goulding that his rent would be $40 per month after expiration of the lease. On January 19, Fulton wrote the agent stating he had made a proposition to Goulding’s son, which seemed satisfactory, as follows: “$35 per month for the first year and them to repair the room to suit themselves, and should they want it for two years the rent will be $40 per month.” (p. 325.) This letter was written in response to a letter from the agent, and was shown by the agent to Goulding. Goulding proceeded to make repairs, and paid the rent for February, which the agent remitted to Fulton. Controversy arose over the form of written lease prepared by Goulding and sent to Fulton by his agent for signature, Fulton insisting it should contain a sale clause. The material portions of the syllabus read as follows:
“The evidence in an action for unlawful detainer held to have a tendency to show that a letter Was written by the owner of real estate to his agent containing an offer to rent it to the occupant for a stated amount; that the letter was shown to the occupant, who notified the agent that he accepted the offer; and that the relations of the parties was such that notice to the agent was equivalent to notice to the principal.
“Assuming the facts to be established as indicated in the preceding paragraph, a completed contract resulted, . . .
“A sufficient memorandum in writing to satisfy the statute of frauds may consist of a letter from the owner of real estate to his agent, offering to lease it on stated terms, followed by an oral acceptance by the tenant.” (ffff 1, 2, 3.)
The distinction between the Goulding case and the one under decision seems to the court to be very marked. In the Goulding case we start with correspondence between principal and agent respecting negotiations with a prospective tenant. The letter of January 10 was an offer to lease to Goulding, for $40 per month, which the agent was directed to communicate to Goulding. The letter of January 19 contained a proposition to lease on modified terms, already given to Goulding’s son. True, the agent was not expressly directed, as before, to take the proposition to Goulding; but considering the phraseology of the letter, the state of the negotiations, and the relations of the parties, the proposition was .an offer to lease to Goulding. When the offer was communicated to Goulding, and he accepted it, a contract was formed, and the letter was a sufficient memorandum, under the statute of frauds. In this case, we have simply the appointment of an agent to find a tenant willing to take a lease on specified terms. The contract is with the agent, and the only liabilities arising upon the contract are between the parties to it. It is not a contract to pay the agent a commission for producing a tenant, plus an offer to make a lease to any qualified person whom the agent may produce. After the agent has performed on his side, and has earned his commission, privilege to make a lease or not remains to the principal, who rests under no obligation to the agent’s customer. All this is settled law governing contracts employing real-estate brokers, and, generally a communication between an owfier and a real-estate broker, stating terms on which the owner will sell or lease, does not constitute an offer at large which may be accepted by anyone to whom the broker exhibits it. (Schuhmacher v. Lebeck, 103 Kan. 458, 173 Pac. 1072; Wiggam v. Shouse, 105 Kan. 637, 185 Pac. 896; Spiher v. Johnson, 110 Kan. 339, 341, 203 Pac. 696; Corley v. Ehlers, 99 Kan. 748, 163 Pac. 140; Brown v. Gilpin, 75 Kan. 773, 786, 90 Pac. 267.)
The petition alleged revocation of agency, occurring at a stated time and place. The answer disclosed that before revocation occurred the agent had not only entered upon the business of finding a tenant, but had secured Wolcott as a tenant. The next day the plaintiff attempted to revoke the agent’s authority, but the agent refused to submit to any revocation. The listing contract created an exclusive agency for a definite period. It expressed a consideration, and in any event became binding on the principal as soon as the agent expended time and money in the principal’s service. The agent could not then be prevented from earning a commission, within the period of his appointment, by revocation of authority while he was conducting negotiations with a prospective tenant.
There is no dispute that Wolcott was ready, able and willing to take a lease on the terms proposed. Therefore the agent is entitled to the stipulated commission, unless the plaintiff can establish material false representation or false pretense in procuring the agency, or actual bad faith in exercising it. This is the only issue remaining to be tried. In this connection it may be noted that, if the investment company executed and delivered the lease to Wol-cott in good faith, in the belief it was acting pursuant to authority conferred by the listing contract, the mistake as to the extent of its power would not of itself work forfeiture of commission.
The judgment of the district court canceling the executed lease and denying specific performance, is affirmed. The judgment disallowing the agent’s commission is reversed, and the cause is remanded for trial of the single issue indicated, the result of which will determine the nature of the judgment to be-rendered. | [
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The opinion of the court was delivered by
MaRsi-iall, J.:
The plaintiff recovered judgment against defendants Joseph H. Kirk and Flora A. Kirk jointly for $323, against Joseph H. Kirk for an additional sum of $600, and against defendants Joseph H. Kirk and Orville S. Cummins for an additional sum of $1,100, as damages, compensatory and punitive, for wrongfully attaching property and for wrongfully securing the appointment of a receiver, who wrongfully took personal property, in all of which the plaintiff was interested. Joseph H. Kirk, Flora A. Kirk, and Orville S. Cummins appeal.
W. H. Cummins owned 240 acres of land in Sumner county. He leased that land to the plaintiff for two years. The lease provided that W. H. Cummins should furnish certain animals, farm implements, and grain for seed; that the plaintiff should furnish certain animals and farm implements; that they should share equally in all increase .in live stock and in gain or loss; and that the plaintiff should deliver one-half the grain to W. H. Cummins at the nearest market. This contract created a partnership between the plaintiff and W. H. Cummins. During the existence of the lease created by this contract, W. H. Cummins died and left surviving him, as his’ heirs, his wife and the defendants Flora A. Kirk and Orville 8. Cummins. Flora A. Kirk was the wife of Joseph H. Kirk. Orville S. Cummins was appointed administrator of the estate of W. H. Cummins, deceased; and the plaintiff was appointed administrator of the partnership estate of E. B. Posey and W. H. Cummins.
Orville S. Cummins as administrator commenced an action against the plaintiff and took personal property from him by writ of re-plevin. Judgment has not been rendered' in that action. Orville S. Cummins as administrator commenced another action against the plaintiff and procured the appointment of a receiver, who took possession of all the stock and implements in which the plaintiff and the estate of W. H. Cummins were interested. The latter action was dismissed, and the receiver returned the property to the plaintiff. Joseph H. Kirk purchased from the widow of-W. H. Cummins and from Orville S. Cummins their interest in the land. Joseph H. Kirk and Flora A. Kirk commenced an action of forcible detention to obtain possession of the land. That" action, after judgment in the justice of the peace court, was appealed to the district court. While pending there, the lease expired. The action has not been disposed of. Joseph H. Kirk and Flora A. Kirk commenced an action against the plaintiff and in it caused the feed and grain on the land to be attached. The attachment was dissolved. These actions were all commenced within a short period of time.
The plaintiff commenced an action against Joseph H. Kirk, Flora A. Kirk, and Harley Bates to recover the damages sustained by the plaintiff in the attachment suit. The plaintiff commenced another action against Joseph H. Kirk, Orville S. Cummins per-' sonally, and Orville S. Cummins as administrator of the estate of W. H. Cummins, deceased, to recover the damages sustained by the plaintiff in the receivership suit. These actions were consoli dated in the district court and were tried together. Three verdicts were rendered: One against Flora A. Kirk for $323, one against Joseph H. Kirk for $923, and one against' Joseph H. Kirk and Orville S. Cummins for $1,100.
Special questions were answered by the jury as follows:
“1. If you find from the evidence that the attachment was malicious, state what acts on the part of the defendants showed malice? A. By bringing four law suits for the purpose of annoying Posey.
“2. (a) Did the defendants consult an attorney before causing the attachment to be levied?. A. Yes.
“(b) Did they act upon his advice in good faith, after telling him all of the facts in the case? A. No.
“3. (a) Did the defendant Orville S. Cummins consult a reputable practicing attorney and tell him all the facts in connection with the business with the plaintiff E. B. Posey before commencing the action against E. B. Posey, in which a receiver was appointed? A. No.
“(b) Did the attorney consulted by Orville S. Cummins advise the bringing of such action, and did Orville S. Cummins act on such advice in. good faith in bringing said action? A. No.
“4. (a) Did J. H. Kirk consult a reputable, practicing attorney before bringing any action against the plaintiff E. B. Posey? A. Yes. .
“(b) Did the defendant J. H. Kirk state fully and fairly all the facts known in regard to the relations between himself and E. B. Posey to the attorney whom he consulted? A. No.
“5. Did the defendant J. EL Kirk act on the advice of the attorney whom he consulted in bringing the action which he brought against the plaintiff E. B. Posey, in good faith? A. No.
“6. Did the sheriff, either under the attachment or as a receiver, take any property- belonging to the plaintiff E. B. Posey, or any property that did not belong to the partnership or' to the estate of W. EL Cummins, deceased? A. No.
“7. Did the defendant Flora A. Kirk conspire with any other defendant to injure the plaintiff by bringing suits against him? A. No.
“8. Did the defendant J. H. Kirk conspire with any other defendant to injure and harass the plaintiff by bringing suits against him?- A. Yes.
“9. W-as there a conspiracy between the defendants to bring actions against the plaintiff in Sumner County, Kansas, for the purpose of harassing and injuring the plaintiff and without any probable cause for such actions? A. Yes.
“10. Were the suits brought By the defendants in Sumner County, Kansas, brought maliciously and without probable cause? A. Yes.
“11. Did the defendants bring the suits in the District Court of Sumner County, Kansas, of which the plaintiff complains, because they believed that they had valid causes of action against the plaintiff and that such suits were necessary to obtain their rights? A. No.
“12. Did the defendant Orville S. Cummins have anything to do with the bringing of the suit for the possession of the farm brought by the defendants, J. H. Kirk and Flora A. Kirk? A. Yes.
“13. Did the defendant Orville S. Cummins have anything to do with the bringing of the attachment suit to recover rents, brought by the defendants J. H. Kirk and Plora A. Kirk? A. Yes.
“1. If you allow any actual damages in the attachment case, how much do you allow for:
“(a) The procuring and hauling of feed by plaintiff Posey. A. $48.00.
“(b) Time spent by Posey in attending court, consulting with attorneys, etc. A. $25.00.
“(c) For attorneys’ fees. A. $250.00.
“2. If you allow any punitive damages in the attachment case, how much do you allow:
“(a) Against defendant Joseph H. Kirk? A. $600.
“(b) Against defendant Flora A. Kirk? A. None.
“3. If you find actual damages for the plaintiff in the receivership case, how much do you allow:
“(a) For time spent by Posey in consulting attorneys,' attending court, etc? A. $.
“(b) For attorneys’ fees? A. $250.00.
“(c) For loss of use of team of mules? A. $200.00.
“(d) For damages and shrinkage to live stock while in the possession of the receiver? A. $50.00.
“(e) For damage done to suckling calf? A. None.
“(Z) Do you allow all of the above items against both Cummins and Kirk? Answer ‘Yes’ or ‘No.’ A. Yes.
“4. If you allow exemplary damages in the receivership case, how much do you allow, and against whom? (a) The defendant Orville S. Cummins. A. $300. (b) The defendant J. H. Kirk. A. $300.
“5. Is it a fact, that in procuring the receiver, the defendants J. H. Kirk and Orville S. Cummins acted without probable cause and with malice? A. Yes.
“6. Did the defendant Orville S. Cummins know, or should he have known, that Posey was entitled to the possession of the stock and property which the receiver took possession of, when he filed the suit, until such time as the 'same was settled through the probate court? A. Yes.”
We cannot state the position of the appellants better than by quoting from their brief, as follows:
“During the trial of the present actions two principle defenses were urged, one being that the appellee was not the proper party to¡ maintain the actions, and the other being that the plaintiff failed to prove any damage. It is these defenses' which we particularly desire to urge on this appeal. Since the only property attached or taken by the receiver or the appellants was partnership property,, any right of action for damages thereto was in the surviving partner as such, for the benefit of the partnership estate, and one partner could not recover damages for injuries to his share in the partnership estate, without showing what his interest in that estate was.”
The appellants contend that the “appellee was not the proper party plaintiff”; that “where a partnership is dissolved by the death of one of the partners the surviving partner is the proper party plaintiff in an action to recover damages for injuries to partnership property”; that “the only damages awarded to the appellee by the jury'were damages which were sustained by the partnership estate, and not by the appellee individually”; that “one partner cannot recover damages, in an action brought.by him for injuries to his share in the partnership property, without showing of what his interest herein consisted”; and that “the trial court erred [in] overruling defendant’s demurrer to plaintiff’s evidence; in refusing to give requested instructions numbers one and sixteen; in rendering judgment in favor of appellee and against appellants; in overruling defendant’s motion for judgment on the special findings of the jury; and in overruling defendant’s motions for new trials.”
1. The actions commenced by the appellants against the plaintiff were prosecuted against him individually. The appellants are liable for the damage they did to him individually. They cannot say that they did not damage him when in the actions against him they compelled him to do those things that were necessary to protect his interest in the joint property of himself and W. H. Cummins, deceased. The appellants were claiming under W. H. Cummins as personal representatives, heirs, or successors. In actions against the plaintiff, they undertook to secure the possession of all the joint property of the plaintiff and W. H. Cummins. In that effort, they caused the plaintiff damage other than injury to the joint preperty. For that damage, the plaintiff obtained a judgment; and the appellants must pay.
2. The answers to the special questions submitted to the jury show that the verdict 'against Joseph H. Kirk and Orville S. Cummins for $1,100 included $200 for loss of the use of a team of mules and $50 for shrinkage of live stock while in the possession of the receiver. These sums were allowed because of injury to the partnership estate for which the plaintiff individually cannot recover. (Railway Co. v. Hucklebridge, 62 Kan. 506, 64 Pac. 58; Sutton v. Railway Co., 104 Kan. 282, 284, 178 Pac. 418; Moore v. Thompson, 105 Kan. 492, 494, 184 Pac. 980.) The damage to partnership property must be recovered by the partnership estate. It follows that those items must be deducted from the judgment for $1,100.
It is therefore ordered that the trial court modify the judgment against Joseph H. Kirk and Orville S. Cummins by reducing it from $1,100 to $850; and, as thus modified, the entire judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Mamie Hurston was convicted in the police court of Atchison, a city of the first class, of violating an ordinance by having intoxicating liquor in her possession. She appealed to the district court where she was again convicted. She was fined $200 and sentenced to the city jail for sixty days. She then applied to the district court for a discharge upon habeas corpus on the ground that the sentence, although in accordance with the terms of the ordinance, was void because in conflict with the statute. She appeals to this court from the refusal to grant the writ.
1. The penalty clause of the ordinance under which the conviction was had reads: “Any person violating the provisions of this section, shall be deemed guilty of a misdemeanor and on conviction thereof, shall be fined not less than $100.00, nor more than $500.00, and imprisoned in the City Jail, not less than thirty days, nor more than six months.”
The petitioner contends that the ordinance is void because by reason of the following statutory provision she can be restrained of her liberty in consequence of violating a liquor law or doing any other forbidden act only by being held at the state industrial farm for women for an indefinite period:
“Every female person, above the age of eighteen years, who shall be convicted of any offense against the criminal laws of this state, punishable by imprisonment, shall be sentenced to the State Industrial Farm for Women, but the court imposing such sentence shall not fix the limit or duration of the sentence.” (Laws 1917, ch. 298, § 5.)
This provision does not prevent the lawful sentence of the petitioner to the city jail, because its operation is confined by its express terms to persons convicted of an offense against the criminal laws of the state, while the petitioner has been convicted of a violation of a city ordinance. A city ordinance is in a sense a law, and in some connections may be regarded as within the meaning of that term as used in a statute. But it is a law of local application — a by-law of the municipality — and not a law of the whole state. The phrase “criminal laws of this state” cannot be regarded as including city ordinances. It is familiar law that a person may be prosecuted, convicted and punished for the violation of a statute and may be again prosecuted, convicted and punished for the same act because of its being forbidden by a city ordinance. The laws of the state do . not prescribe punishment for violations of city ¡ordinances and therefore such acts are not “public offenses” or “misdemeanors” as those terms are defined in the statute (City of Burlington v. Stockwell, 1 Kan. App. 414, 41 Pac. 221), although the latter word is sometimes used in such a broad and popular sense as to include them for purposes of procedure. (City of Burlington v. Stockwell, 56 Kan. 208, 42 Pac. 826.) A case brought in the police court “is prosecuted for the violation of a city ordinance, and not for the violation of any of the general laws of the state.” (City of Burlington v. James, 17 Kan. 221, 223.)
2. The authority of the city with respect to the ordinance in question is derived from the statute reading as follows:
“That all cities of this state may enact and enforce ordinances relating to possession, receipt, transportation and delivery of intoxicating liquors, and prohibiting all acts made unlawful by House bill No. 432 of the Laws of 1917 of this state [Laws 1917, ch. 215] relating to intoxicating liquors and providing punishment for each violation of such ordinances by fines of not less than one hundred dollars nor more than five hundred dollars and by imprisonment for not less than thirty days nor more than six months and payment of costs and providing for commitment until such fines and costs are paid.” (Laws 1917, ch. 217, § 1.)
“The statute, by not prescribing whether the imprisonment imposed shall be in the jail of the county or in the city prison, has ' left the question open for the determination of the city.” (Wichita v. Murphy, 78 Kan. 859, 861, 99 Pac. 272.) The penalty fixed by an ordinance must conform to the provisions of the statute specifically authorizing its passage (Assaria v. Wells, 68 Kan. 787, 75 Pac. 1026; In re Van Tuyl, 71 Kan. 659, 81 Pac. 181), but there is no general requirement that the penalty imposed for the violation of an ordinance shall not be different from that provided by a statute forbidding the same act. (Minneola v. Naylor, 84 Kan. 147, 113 Pac. 309.)
3. The statute already quoted requires that the penalty fixed by an ordinance forbidding having intoxicating liquor in one’s possession shall in addition, to the fine and imprisonment prescribed include commitment until the fine and costs are paid. The ordinance here. involved contains, no reference to such commitment. Such omission has been held fatal. (In re Van Tuyl, 71 Kan. 659, 81 Pac. 181.) The case cited, however, although decided in 1905 involved an ordinance passed under the statute of 1901, and in the opinion it was said that it could not be aided by the act of 1903. The later statute, unlike that of 1901, provides that upon a conviction in the police court “it shall be a part of the judgment that the defendant stand committed until the judgment be complied with.” (Gen. Stat. 1915, § 1158.) The clause quoted is self-operative and requires no repetition in an ordinance to make it effective. The first sentence of the section cited reads: “If the defendant is found guilty, the court shall declare the punishment, including all witnesses’ fees, and render judgment accordingly.” The words quoted were obviously pied at some stage of the legislation, for as they have come out of the process they are without meaning if read literally. To say that the court shall declare the punishment, including all witnesses’ fees, means nothing. But the purpose to require the judgment to include the payment of costs, including witnesses’ fees, is sufficiently clear to warr'ant giving the statute that effect, under the rule permitting the supplying of words inadvertently omitted. (Landrum v. Flannigan, 60 Kan. 436, 56 Pac. 753.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Maeshall, J.:
The petition charges that the defendant willfully neglected to perform his duty in the enforcement of the prohibitory liquor laws of this state; that he was intoxicated in a public place; and that he willfully neglected to perform his duty in keeping the peace during the recent strike of railroad shopmen. The petition asks that the defendant be removed from the office of sheriff of Sherman county.
The evidence has been taken by deposition. Affidavits have been filed, but they are not considered. The depositions show, and the court finds, that the defendant willfully neglected to take proper steps to enforce the prohibitory liquor laws of this state in his county; that he had knowledge that one John Saathoff, a resident of Sherman county, was operating a still for the manufacture of intoxicating liquors and was selling such liquors in that county; that the defendant, in substance, told Saathoff that the defendant knew what business Saathoff was engaged in and would not molest him, but that he should look out for the federal officers; that those officers moved against Saathoff; and that the defendant learned of the proposed action of those officers and, before the officers arrived at Saat-hoff’s place, notified Saathoff to clean up his premises. There is evidence which tends to show that the reason given by the sheriff for his lack of activity in the enforcement of the prohibitory liquor laws was that he received no extra compensation for his services in that regard while the county attorney received $25 for each conviction.
The evidence does not establish that the defendant was intoxicated in a public place, although there is evidence which tends to prove that he was.
The court finds that during the recent strike of railroad shopmen the attitude of the defendant was antagonistic, or indifferent to the enforcement of the laws for the preservation of the peace and to the enforcement of chapter 29 of the Laws of 1920, the court of industrial relations act. The evidence does not prove that during that strike the defendant was guilty of any act that he should not have done, nor that he failed to do anything that he should have done/ The evidence does establish that the attitude of the defendant was one out of which it might reasonably be expected that riots and violence would occur. The evidence shows that in response to an inquiry by the governor, the defendant replied that he could take care of the situation in his county and that assistance from the state through the national guard was unnecessary; that violence, arising out of the strike, did occur in that county on two separate occasions — once, on the night of August 19, 1922, when the sleeping quarters of the men working in the Chicago, Rock Island & Pacific railroad shops at Goodland were fired on, some twenty or thirty shots being fired from guns of different caliber; that the defendant stated he believed the shots were fired by, those who were working in the shops and who had gone outside for the purpose of doing the shooting; that workmen from the shops could not freely go on the streets of Goodland; that a man who was providing food for the men working in the shops was assaulted by a number of persons on the streets of Goodland; that when the person who was assaulted reported the matter to the defendant, the attitude of the latter was one of indifference; and that the defendant appointed two strikers as deputy sheriffs, although they were promptly removed at the suggestion of the governor.
Section 7603 of the General Statutes of 1915, in part, reads:
“Every person holding any office of trust or profit, under and by virtue of any of the laws of the state of Kansas, either state, district, county, township or city office, who shall willfully misconduct himself in office, or who shall willfully neglect to perform any duty enjoined upon such officer by any of the laws of the state of Kansas, . . . shall forfeit his office, and shall be ousted from such office in the manner hereinafter provided.”
Section 5505 of the General Statutes of 1915, in part, reads:
“It shall be the duty of all sheriffs, deputy sheriffs, constables, mayors, marshals, police judges, and police officers of any city or town having notice or knowledge of any violation of the provisions of this act, to notify the county attorney of the fact of such violation, and to furnish him the names of any witnesses within his knowledge by whom such violation can be proven. . . . For a failure or neglect of official duty in the enforcement of this act, any of the city or county officers herein referred to may be removed by civil action.”
Section 6 of chapter 29 of the Laws .of 1920, reads:
“It is hereby declared and determined to be necessary for the public peace, health and general welfare of the people of this state that the industries, employments, public utilities and common carriers herein specified shall be operated with reasonable continuity and efficiency in order that the people of this state may live in peace and security, and be supplied with the necessaries of life. No person, firm, corporation, or association of persons shall in any manner or to any extent, willfully hinder, delay, limit or suspend such continuous and efficient operation for the purpose of evading the purpose and intent of the provisions of this act; nor shall any person, firm, corporation, or association of persons do any act or neglect or refuse to perform any duty herein enjoined with the intent to hinder, delay, limit, or suspend such continuous and efficient operation as aforesaid, except under the terms and conditions provided by this act.”
Section 17 of that act is as follows:
“It shall be unlawful for any person, firm, or corporation, or for any association of persons, to do or perform any act forbidden, or to fail or refuse to perform any act or duty enjoined by the provisions of this act, or to conspire or confederate with others to do or perform any act forbidden, or to fail or refuse to perform any act or duty enjoined by the provisions of this act, or to induce or intimidate any person, firm, or corporation engaged in any of said industries, employments, utilities or common carriers to do any act forbidden, or to fail or refuse to perform any act or duty enjoined by the provisions of this act, for the purpose or with the intent to hinder, delay, limit, or suspend the operation of any of the industries, employments, utilities or common carriers herein specified or indicated, or to delay, limit, or suspend the production or transportation of the products of such industries, or employments, or the service of such utilities or common carriers: Provided, That nothing in this act shall be construed as restricting the right of any individual employee engaged in the operation" of any such industry, employment, public utility, or common carrier to quit his employment at any time, but it shall be unlawful for any such individual, employee or other person to conspire with other persons to quit their employment or to induce other persons to quit their employment for the purpose of hindering, delaying, interfering with, or suspending the operation of any of the industries, employments, public utilities, or common carriers governed by the provisions of this act, or for any person to engage in what is known as ‘picketing,’ or to intimidate by threats, abuse, or in any other manner, any person or persons with intent to induce such person or persons to quit such employment, or for the purpose of deterring or preventing any other person or persons from accepting employment or from remaining in the employ of any of the industries, employments, public- utilities, or common carriers governed by the provisions of this act.”
A sheriff cannot be ousted and probably should not be censured on account of his sympathy for the strikers in the recent strike, but that does not excuse him for taking an attitude antagonistic or indifferent to the enforcement of the law. The state has not proved any positive act, nor the failure to do anything, connected with the strike, for which the defendant can be^ousted from the office of sheriff.
Because of the positive neglect of the defendant to enforce the prohibitory liquor laws of this state and .because of his active misconduct in connection with those laws, judgment of ouster is entered against him, and he is removed from the office of sheriff of Sherman county. | [
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The opinion of the court was delivered by
HaRvey, J.:
This is a suit to recover on an insurance policy for loss sustained by fire. The case was tried to a jury; judgment for plaintiff, and defendant appeals. On September 7, 1919, the defendant issued its policy of insurance upon a two and one-half ton truck belonging to plaintiff, for an amount not exceeding $2,400, for a term of one year. About August 5, 1920, the truck was damaged by fire. The policy of insurance contained a number of provisions, among others the following;
“16. Arbitration. In the event of a disagreement as to the amount of loss or damage, the same must be determined by competent and disinterested appraisers before recovery can be had hereunder. The member and the association shall each select one and the two so chosen shall then select a competent and disinterested umpire. Thereafter the appraisers together shall estimate and appraise the loss or damage, stating separately sound value and damage, and failing to agree, shall submit their difference to the umpire, and the award in writing of any two shall determine the amount of such loss or damage. The parties thereto shall pay the appraisers respectively selected by them and shall bear equally the expense of appraisal and umpire.”
About December 1, 1920, the parties being unable to agree upon the amount of the loss, an appraisal was had. under the terms of the policy above quoted. Each of the parties selected one appraiser and the two appraisers selected an umpire. The two appraisers were unable to agree upon the amount of damage and one of the appraisers and the umpire found that the truck before the fire was of the value of $2,400; that the damage done by fire and the loss sustained was $2,325, and that the value of the car after the fire was $75. The other appraiser made a separate report in which he found the sound value of the car before the fire to be $2,400; that its value immediately after the fire was $400, and that the damage sustained was $2,000. The sum found due by the appraisers not being paid in sixty days, this suit was filed. The plaintiff set up ih his petition the issuance of the policy; the payment of the premium; the damage by fire in which he claimed a total loss of $2,400; proof • of loss; inability of the parties to agree upon the amount of the loss; the appraisal under the terms of the policy; and prayed judgment for the amount of the appraisal, $2,325, with interest, and for costs, including $500 attorney fees. A copy of the policy was attached to the petition. The answer admitted the issuance of the policy; denied that there was an appraisal in accordance with its terms; but alleged that the appraisal was unfair because one of the appraisers was not competent by reason of his interest, and that the appraisal was fraudulent and void, and also alleged that the policy contained provisions permitting the defendant to repair under certain circum- , stances, and that it had offered to make repairs, which offer had been refused, and denied liability. The reply put in issue the matters alleged in the answer, and further alleged that if for any reason the appraisal should be set aside, that plaintiff should recover upon the terms of the policy of insurance. The court held the suit to be one under the policy and not upon the appraisal, placed the burden of proof upon the plaintiff tó show that the appraisal was fair and by disinterested appraisers, admitted the fact of the appraisal and the report of the appraisers in evidence only as tending to show the compliance by the plaintiff with the condition precedent to a suit upon the policy, and required the plaintiff to prove his loss-without regard to. the amount found due by the appraisers, and at the close of plaintiff’s testimony, plaintiff elected to rely upon the policy and not upon the appraisal. The jury found the plaintiff’s damage to be $2,100. The court approved the verdict and rendered judgment thereon, and also made an allowance to plaintiff for his attorney’s fees of $600.
Appellant complains, first, that the suit was upon the amount found due by the appraisers, and was not upon the policy, and that the court admitted evidence and instructed the jury as though the suit were upon the policy, and that this was a fatal variance. This is the principal ground of appellant’s contention, and it is presented very earnestly and from many angles. We see no merit in this contention. The allegations of the petition, a synopsis of which is above set out, included all of the essential allegations of a suit upon the policy. It is true that the prayer of the petition asked for judgment upon the appraisal and for the amount of the appraisal. The prayer of the petition does not control the nature of the action. In Eagon v. Murray, 102 Kan. 193, 170 Pac. 389, it was said:
“The prayer of a petition is merely the pleader’s idea of the relief to which he is entitled; it is not a part of the statement of the cause of action; and if the cause of action is sufficiently stated and sufficiently proved, the court will adjudge and decree the proper legal redress, which may or may not conform in whole or in part to the relief prayed for by the pleader.” (Syl. ¶ 2.)
In this case the prayer, under the allegations of the petition, might very well have been for the full amount of the policy. Appellant in its brief points out the distinction between an appraisal and an arbitration, and insists that the plaintiff, in his petition, wrongfully treated the appraisal as an arbitration. It will be noted that the policy of insurance gives the title “arbitration” to the paragraph dealing with appraisal. While the matter is spoken of in plaintiff’s petition as an “arbitration or appraisal,” the terms are no more confusing than they are in defendant’s policy. The court correctly treated the matter as an appraisal and as a condition precedent to a suit upon the policy, and permitted the evidence pertaining to the appraisal for the purpose only of proving whether or not that condition had been complied with by the plaintiff so that he would be entitled to sue. This is as favorable a view of the matter for the defendant as could be taken, and we regard it as the correct view.
The policy also contained the following clause:
“6. Liability oj Association. In. the event of loss or damage under this certificate, the association shall be liable only for the actual cost of repairing, or if necessary, replacing the parts damaged or destroyed. It shall be optional with the association to repair, rebuild, or replace the property lost or damaged with other of like kind and quality within a reasonable time, on giving notice .within thirty days after the receipt of the sworn statement of loss herein required, of its intention so to do, but there can be no abandonment to the association of the property described.”
Defendant contends that it offered to repair the truck but that plaintiff refused its offer. The plaintiff was asked on cross-examina tion, “Do you remember an occasion shortly after the fire when Mr. Quinn offered to take your truck and repair it and place it in as good condition and satisfactory to you?” The question was objected to and the objection sustained. This was the only effort made on the part of defendant to show that it had attempted to comply With the clause in the policy above quoted. It is not necessary for us to consider whether the defendant waived its right to repair by requiring an appraisal, though under the authority of Insurance Co. v. Arnold, 65 Kan. 163, 69 Pac. 174, and Leeman v. Insurance Ass’n, 68 Kan. 812, 74 Pac. 1132, it would .seem that it did so. There was no competent evidence tending to show that defendant gave the notice, or in any way endeavored to avail itself of this clause of the policy, and the court correctly instructed the jury on that question.
Appellant contends that in plaintiff’s petition he asked for $500 to be taxed as costs, for attorney’s fees, and that the court on motion fixed the attorney’s fees at $600, and appellant makes the point that plaintiff could not recover more than prayed for. We think this point good, and the judgment should be modified by reducing the attorney’s fees from $600 to $500. As thus modified, the judgment of the court below will be affirmed. | [
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The opinion of the court was delivered by
JOHNSTON, C. J.:
The defendant was prosecuted for arson. The information contained two counts, one for the burning of the building in which his stock of goods was kept, and the other for setting fire to the merchandise and contents in the building. In the trial he was acquitted on the first count, charging the burning of the building, and at the close of the evidence the court withdrew from the consideration of the jury the charge under the second count, holding that the state had wholly failed to establish by any evidence that the property at the time of the alleged fire was insured against loss by fire. The court stated that there was testimony that the property was insured and that policies of various amounts had been issued, but the nature or kind of insurance or what the property was insured against was nowhere shown. The plaintiff appeals, claiming to have reserved a question upon which the state is authorized to appeal.
May the state have an appeal where the defendant has been placed in jeopardy, acquitted, and the court no longer has jurisdiction over him? Upon the charge in the second count considerable testimony was received relating to the setting of fire to goods in the building, but the court in the end ruled that an essential element of proof was lacking, and directed the jury to give that count no further consideration.
In behalf of the state, it is contended that the evidence is preserved, that its sufficiency is a question of law which the state has reserved and which the court can determine on an appeal by the state. Within the rule laid down in The State v. Allen, 107 Kan. 407, 191 Pac. 476, the question is held to be one that can be reserved if the status of the case is not such as to .bar further prosecution of the offense charged. If jeopardy has attached, the placing of the defendant on trial again for that offense would be putting him twice in jeopardy, which the constitution forbids. In the Allen case there had been a disagreement of the jury but the proper discharge of the jury did not operate as a bar to a further prosecution of the defendant, and a plea of jeopardy was not available to him. The reserved question in that case was not moot as the decision could be applied and used as a guide in the further prosecution of the case. Here the defendant was put upon trial, upon an information that was sufficient in form and substance, before a. jury regularly impaneled and sworn, and a plea of not guilty was entered. Testimony was offered which the court held to be insufficient as to one of the counts and upon the other a verdict of acquittal was rendered. He certainly had been placed in jeopardy and therefore he cannot be retried. In the case of The State v. Rook, 61 Kan. 382, 59 Pac. 653, it was said:
“A uniform line of decisions has maintained the proposition that no error, however flagrant, committed by the court against the state can be reserved by it for decision by the supreme court when the defendant has once been placed in jeopardy and discharged, even though the discharge was the result of the error committed. This for the reason that the accused, having been once in jeopardy, cannot be retried, after reversal of the case, upon the state’s appeal, and the questions presented, being therefore moot in their nature, will not be considered by the court.” (Citing many decisions.) (p. 385.)
Any decision the Gourt might make upon the question reserved by the state in this case would be without effect, and when a case becomes moot judicial action is at an end. The authorities are collated in The State v. Allen, supra, and they uniformly held that when jeopardy attaches, the defendant acquitted and discharged, and there can be no further prosecution of the offense, and no judicial action that can be taken will be effective, an appeal from a ruling in the prosecution cannot be considered.
The appeal will be dismissed.
HopKINS, J., not sitting. | [
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The opinion of the court was delivered by
Pouter, J.:
The defendant was convicted of arson in the fourth degree and sentenced to confinement in the county jail for one year and to pay the costs of the prosecution. He appeals.
The defendant is a brother of Edd Schalansky and Charlie Scha-lansky who lived in the same neighborhood, and all of them are farmers. On Saturday night, the 18th of September, 1920, a fire occurred which burned up four stacks of wheat belonging to Edd Schalansky. The stacks were in an open field about a mile on a direct line from the defendant's dwelling. The evidence showed that Edd Schalansky and his family had been in the habit of going to town on Saturday nights, and that on this occasion they went to a picture show; that the fire wás discovered about two hours after they left home. Mr. Hain, a banker, who was also an insurance agent and had written a policy covering the burned wheat, and some other persons interested in an investigation, sent for bloodhounds, which arrived on Sunday evening following the fire. The dogs were put upon the trail near one of the burned stacks. It was then dark; the dogs started to go south through the stubble and crossed a strip of plowed ground six or eight feet wide. The owner of the dogs, who was in charge of them, stopped the dogs and told the bystanders to have an automobile brought up to this strip of plowing and that he would show them a track which the dogs were following. A car was driven up, the lights thrown upon the plowed strip, and the track of a man’s foot was found in the plowed ground. When the dogs were loosed they went directly over this track, and continuing to follow an apparent trail went to the dwelling house of the defendant. When he came to the door the dogs smelled of his feet, looked up at him and the evidence tended to show that they refused to work further. One week after this fire the barn of Charlie Schalansky was burned and he sustained the loss of $8,000 or more. The barn was situated five or six miles from the defendant’s house. The same dogs were sent for again and were started from a post near where the barn had stood and at which a horse had apparently been tied. The dogs proceeded to follow a trail which led over roads and hills direct to defendant’s dwelling. He was there at the time and he had white horse hairs on his overalls and there was a white horse in his pasture. The state contended that he had used the horse to get to Charlie Schalanslcy’s barn and return to his home.
There was evidence of bad feeling upon the part of Henry Scha-lansky against his brother Edd. The latter had bought a farm from the defendant, giving as part of the purchase price a mortgage for $9,000, which'the defendant attempted to foreclose, and it became a question of fact whether one of the coupon notes had been paid; a jury determining that it had been. On appeal the judgment in Edd’s favor was affirmed at the January, 1920, term. (Schalansky v. Schalansky, 106 Kan. 621, 189 Pac. 367.) The evidence of the state was to the effect that Henry went to Chicago, and just before leaving he told Edd that he would get even with him if it took him twenty years to do it. Within a month after his return the wheat was burned. The mother of the boys testified that she told the defendant about the fire and he said to her in substance, “They are going to push it on me,” and that when the dogs came he said, “They push it on me.” The evidence also showed that the defendant manifested much interest in discovering whether the wheat that was burned was insured, and he inquired of Mr. Hain, who wrote the insurance; further, that a day or two after the first fire he went to the stubble field and gathered samples of some of the poorer wheat, which he used at a former trial of this case to show that the wheat that burned was poor and overinsured. On the present trial he was a witness and testified, “I went to look at the track on Tuesday, . . . Man that made track might have had one toe off. . . . I was not trying to make it appear like Edd burned the stacks.” The evidence showed that his brother Edd had lost the great toe from the left foot.
The first complaint relates to instruction No. 21, which reads:
“The only purposes for which you can consider the evidence introduced in this case relative to the fire at the home of Charles Sehalansky are such portions of that evidence which will help you to determine: The reliability or unreliability of the dogs. The feeling, if any, existing between Edd Sehalansky and the defendants.”
It is argued that there was no evidence upon which this instruction could be based; nothing to show any joint venture in which Charles and Edward were interested; no evidence that Edward had any interest in the barn, nor to show any bad feeling between defendant and Charles, and that Charles testified there had been no trouble between them up to this time.
In other words, the argument is that evidence of the commission of another crime at a subsequent time is incompetent to prove the existence of any element entering into the crime charged in the information. The court, in substance, told the jury it could only be considered so far as it might help them to determine the reliability or unreliability of the dogs and the feeling, if any, existing between the defendant and the owner of the stacks. This was the purpose for which the state introduced it. Evidence had been offered by the state to show that the defendant had such ill feeling and animosity toward his brother Edd, that he sought to show a motive on the part of his brother to burn his own stacks, and in this connection the state claimed that he burned the. barn belonging to another brother in the hopes that suspicion of that burning would fall upon his brother Edd. Evidence of his bitter feeling toward his brother Edd and Edd’s wife; proof of his threat that he would get even with his brother if it took him twenty years to do it; and circumstances tending to show his desire to have suspicion of the, first fire directed to his brother Edd, were enough, in our opinion, to sustain the giving of the instruction.
Another objection is urged because the court referred in the instruction to such portions of the evidence as “will help you to determine,” etc. The use of the word “may” would have been more appropriate, but we do not think the jury were misled by the language used.
It is said that the verdict is contrary to the law of the case as given by the court. In instruction No. 20, the court charged that, “unless you find the tracks, if any, followed by the dogs to the home of the defendant were in fact made by him, you should disregard all evidence of the actions of the dogs in arriving at your verdict.” In several other instructions the court told the jury that if the dogs used for trailing had been shown to be certain, accurate and reliable, the following of human tracks to and upon the premises of the defendant would be competent as tending to show that the person making the tracks had been at the scene of the fire, “still this would not alone be sufficient to justify you in finding that the tracks, if any, followed by the dogs were the tracks of the defendant, ydthout some sufficient evidence of identification or other evidence sufficient to show that he had made them.”
In another instruction the court referred to the fact that evidence had been introduced tending to prove that bloodhounds were put on the trail believed to have been made by the guilty person and that the dogs followed the trail a considerable distance to the home of the defendant, but in the same instruction the jury were told that “this alone would not be sufficient evidence upon which you could find the defendant guilty . . . but is to be considered by you as a circumstance, together with all the other evidence, and circumstances in this case, in determining whether the defendant is or is [not guilty] of the offense imputed to him.”
In defining the function of circumstantial evidence the court gave the usual instruction with reference to the necessity of proving every single chain, and charged that “each essential fact in the chain of circumstances must be found to be true by the jury beyond a reasonable doubt, to warrant a conviction”; and that one of the essential facts here was that the tracks leading from the burned stacks “and which it is claimed the dogs followed were made by the defendant,” and the jury were admonished further that unless they found “that such tracks have been identified as tracks made by the defendant, and that such identification has been proven beyond a reasonable doubt, there would be a failure to establish one of the necessary essential facts.”
Of course, the court did not mean, and it is not the law, that in order to identify the tracks as made by the defendant it would be necessary to produce positive or affirmative evidence, such as evidence of some one who saw the tracks made, or affirmative evidence of measurements showing conclusively that they were made by the defendant. Any or all of the essential facts in such a case may, of course, be shown by circumstantial evidence, and if sufficient to convince the jury beyond a reasonable doubt, the law is satisfied. (The State v. Adams, 85 Kan. 435, 116 Pac. 608; The State v. Mooney, 93 Kan. 353, 354, 144 Pac. 228; The State v. Sweet, 101 Kan. 746, 168 Pac. 1112.) The contention, therefore, that the verdict and judgment is contrary to the law of the case cannot be sustained.
Most of defendant’s brief is taken up with an argument more appropriate to a jury in an effort to show that the circumstances in evidence established the innocence rather than the guilt of the defendant.. In our opinion there was sufficient evidence to sustain the conviction.
We find no error in the record, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Dawsokt, J.:
This was an action to recover a $1,000 payment on the $10,000 purchase price of 80 acres of Harvey county land which plaintiff had bought from defendant on a contract which provided that the vendor was to furnish an abstract of title “showing a good, clear and unencumbered record title, free from clouds of every kind whatsoever.”
The abstract furnished pursuant to this contract traced title by mesne conveyances from some unchallenged source down to one Nancy Mincer, a resident of Harvey county, who died intestate on December 22, 1918. Supplementing this were affidavits, which had been recorded in the office of the register of deeds, showing beyond cavil that Nancy Mincer owed no debts and had no creditors, and that her sole heir was her only son, Joseph Y. Richardson, under whose recorded conveyance the defendant held title.
Plaintiff objected to the sufficiency of the abstract because-there had been no administration of Nancy Mincer’s estate, and no decree of court adjudicating the fact that Joseph V.' Richardson was her only heir, and that such record of administration and decree should be shown on the abstract.
Because of these objections plaintiff declined to go ahead with his bargain and commenced his action to recover a thousand dollars he had paid on the contract. He was defeated, the judgment reciting that plaintiff’s objections to the abstract had no merit, that the abstract fully complied with the terms of the contract of purchase, that the $1,000 payment was in the nature of an option; and the judgment allowed the plaintiff a 30 days’ extension of time to pay the balance due on.the purchase price if he should elect to consummate the contract; otherwise he should be barred of all interest in the land, and that defendant would be entitled to retain the $1,000.
Plaintiff appeals.
No question was raised as to the sufficiency of the affidavits to prove that Nancy Mincer had no debts or other business affairs to justify or require an administration of her estate. Therefore ad7 ministration was unnecessary and would have served no purpose. (Brown v. Baxter, 77 Kan. 97, syl. ¶ 2, 94 Pac. 155, 574.) 'Moreover, administration of her personal estate would not affect her real property unless some showing were made that it was or might be required to pay debts of the decedent. An administrator cannot meddle with the real estate of a decedent under any other circumstances (Head v. Sutton, 31 Kan. 616, 3 Pac. 280); it passes at once to the heirs at law; and in this case the 80 acres in controversy descended directly to Joseph Y. Richardson by operation of law, regardless of the want of any administration of Nancy Mincer’s estate.
As to the want of a decree adjudging that Joseph V. Richardson was the sole heir of Nancy Mincer, it does not appear how such a lawsuit could be instituted. Who would Richardson or this defendant sue to obtain such a decree? Nobody claimed adversely; nobody having color of right appeared in the record, nor in this case was there room for conjecture that any such might exist. Whatever different rule may prevail in other states, the common and appropriate way of showing title by descent in Kansas is the one followed here — by recorded affidavits of trustworthy and disinterested persons who know the facts, showing with sufficient comprehensiveness and detail the relationship by blood or marriage, or both, between the decedent who held the record title and those who assume to convey title thereunder by virtue of the statute of descents.
(Van Gundy v. Shewey, 90 Kan. 253, 133 Pac. 720; note in 7 A. L. R. 1172; Warv. Abstr., p. 313, quoted in Linscott v. Moseman, 84 Kan. 541, 547, 114 Pac. 1088.)
It is not to be assumed that the contract contained a condition with which it was impossible for defendant to comply, yet here the plaintiff demanded some sort of decree which our code of .civil procedure does not supply. Defendant fully complied with its con tract. Plaintiff’s objections to the abstract were capricious and hypercritical, and the judgment of the trial court was correct.
, Minor other matters raised below need no attention now, and nothing further appears in the record which requires discussion.
Affirmed. | [
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The opinion of the court was delivered by
MasoN, J.:
Albert W. Blake, a resident of a rural district of Labette county, 14 years of age, brings this original proceeding in mandamus against the board of education of the city of Parsons (situated in that county and having more than 16,000 inhabitants), asking that it be required to admit him as a pupil to its high school, without his paying tuition. The case is submitted for final disposition upon a motion to quash the alternative writ, the allegations of which are conceded to be true.
The decision turns upon the construction of what is known as the Barnes high-school law, as now amended. That law provides for the levy of a separate tax by the county commissioners for the support of high schools qualifying its graduates for entrance to the state university, maintained by school districts and cities having less than 15,000 inhabitants. The original act contained a section reading, “Tuition shall be free in all such high schools to pupils residing in the county where such schools are located.” (Gen. Stat. 1915, § 9326.) This section was amended in 1917 by adding several provisos. (Laws 1917, ch. 289, § 1.) In 1921 it was again amended, the most important change being the striking out of the word “such” in the sentence quoted. The portion of the section which is here material in its present form reads as follows:
“That tuition shall be free in all high schools to pupils residing in the county where high schools are located: . . . And provided further, That whenever a community is remote from or is not convenient of access to a high school already in operation, and there is not a sufficient number of pupils of high-school advancement in such community to organize and maintain another high school, the board of county commissioners shall upon recommendation of the county superintendent of public instruction, pay the tuition not exceeding two dollars per week or fraction thereof for such pupil of high-school advancement in the most convenient high school to such community, but within the county or in the county adjacent thereto: Provided further, That the county commissioners shall pay such tuition from the general fund of the county where such pupil resides.” (Laws 1921, ch. 239, § 1.)
There is a county high school at Altamont, in Labette county, established under a statute antedating the Barnes act, but this being twenty-five miles from the plaintiff’s home is not convenient of access to him. Nor is any high school in the county except that in Parsons, which although nine miles distant is easily reached by highway and interurban car service. The school district and community in which the plaintiff lives has no high school, and has not sufficient pupils to maintain one. He therefore brings himself within the provisions of the statute and is entitled to attend the high school at Parsons unless that result is prevented by the fact that the Barnes law has not been adopted in that county and by a provision of that act reading: “Cities having more than sixteen thousand inhabitants and counties having heretofore established county high schools, or which may hereafter establish county high schools under the laws now in force, shall be exempt from the operation of this act” (Gen. Stat. 1915, § 9328), which' has never been changed, except by the 'substitution of 15,000 for 16,000. (Laws 1921, ch. 240, § 1.)
As already stated, the section of the statute of 1921 which contains the provision in terms making all high schools free to pupils residing in the county in which they are located is an amendment of a section of the original lhw and must therefore be regarded as incorporated therein, and must be interpreted as if it had been enacted at the same time as the other provisions of that law, whether new or old, and as a part of the same statute. (26 A. & E. Encycl. of L. 712, 713; 36 Cyc. 1164, 1165.) Doubtless this rule of construction would not justify a departure from the actual intention of the legislature as determined by a consideration of all it has said on the subject. The clause under consideration, however — “tuition shall be free in all high schools in the county” — has a field of operation when considered as a part of a law which becomes practically operative only as it is given effect in a particular county by a vote of the people. The original Barnes law provided that (in counties adopting it) “tuition shall be free in all such high schools to pupils residing in the county” — that is in all high schools organized under that law. The result of striking out the word “such” is that now* (in counties that have adopted the Barnes law) pupils may, without the payment of tuition, attend any high school in the county of their residence, under whatever statute it may have been organized. But we hold that in counties — such as Labette — in which the Barnes law has not been adopted the provision' as to free tuition in all high schools is not in force. It follows from the same reasoning that such provision cannot be operative in a county having a county high school organized under a law in existence when the Barnes law was passed. Whether in a county which had properly adopted the Barnes law tuition in a high school of a city of more than 15,000 inhabitants would be free to pupils in the county to whom no other high school was conveniently accessible need not be determined.
In a county in which provision is not otherwise made (as by the Barnes law or the existence of a county high school) for free high-school tuition for every resident qualified pupil, such a pupil who lives in a district having no accredited high school may attend the nearest high school at the expense of the part of the county not maintaining high schools. (Gen. Stat. 1915, § 9361.)
It is quite possible that in enacting that “tuition shall be free in all high schools to pupils residing in the county,” subject to certain restrictions referred to in Oberhelman v. Larimer, 110 Kan. 587, 204 Pac. 687, the legislature actually intended to relieve the situation of a pupil the exercise of whose legal right to attend a county high school was prevented by its distance from his home, but if so that end was defeated by the insertion of such provision in a law that required a vote of the people of a county to make it operative there.
A decision to the contrary, which was originally announced and later recalled, was due to a misreading of the record, with the result that the Barnes law was assumed to be in force in Labette county.
The writ asked for is denied. | [
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The opinion of the court was delivered by
O’Connor, J.:
The defendant, Jerry Trotter, has appealed from the judgments and sentences entered following his conviction on three felony offenses.
Defendant was charged in a single information containing two counts: second degree burglary and grand larceny (K. S.A. 21-520 and 21-524), and felonious assault (K. S. A. 21-431). At defendant’s request, separate jury trials were had on each count. He was found guilty as charged on Count 1 (burglary and larceny). On Count 2, the jury returned a verdict of the lesser included offense of maiming, wounding, disfiguring, or causing great bodily harm (K. S. A. 21-435). Following the denial of defendant’s motions for new trials, the district court sentenced him under the habitual criminal act to the state penitentiary — the sentence on Count 2 to run consecutively to those imposed on Count 1.
The numerous questions raised on appeal may be categorized as follows: (1) Undue delay between defendant’s arrest and his preliminary hearing; (2) insufficiency of evidence to support the verdicts; (3) various evidentiary rulings of the trial court; and (4) erroneous instructions.
The facts giving rise to the charges arose from happenings on two separate occasions. In brief, the state’s evidence showed that during the evening of November 11, 1965, a rear door of the ARC Appliance Company in Wichita was forced open and ten portable television sets, two tape recorders, two portable stereos, and approximately $40 to $45 in cash removed from the premises. The door was pried open by one Cornelius Franklin, who entered the store, took some money, and then departed. He went to a pool hall on Murdock street where he saw the defendant and one Leon Peterson and told them about the break-in. The three returned to the store, along with one W. C. Kimble. As nearly as we can tell from the somewhat abbreviated record, while Kimble waited in his car, Peterson and the defendant obtained merchandise from the store, which included some television sets. What part Franklin had in the ensuing events, we do not know. At any rate, the articles were placed in Kimble’s automobile, and Peterson, the defendant and Kimble drove away. Peterson was let out of the car near his home, taking one of the television sets with him. Kimble and the defendant proceeded to Hutchinson, where they deposited at least part of the merchandise in the home of defendant’s brother. The brother was not home at the time, and upon his return found portable television sets and a stereo in the kitchen of his house. Later in the day (November 12) two Hutchinson police detectives, acting on information received from the Wichita Police Department, searched the brother’s home in Hutchinson and seized the articles later identified as belonging to the appliance company.
Also on the morning of November 12, defendant went to the home of one Hazel Simms and Peterson and talked to Peterson, who in turn told Hazel that defendant was leaving town and had a television set to sell for $20. Hazel gave him $20 and defendant left. Hazel and Peterson then walked to an apartment house on East Murdock. In an upstairs apartment they saw Kimble and a large number of television sets. Hazel picked out the one she wanted, and soon after she returned home, Kimble delivered the set to her —one of those stolen from the appliance company. Hazel then called the police and a detective went to her home, picked up the television set and arrested Peterson.
Although a warrant for defendant’s arrest on the burglary and larceny charges had been issued on November 15, defendant was not apprehended until May 26, 1966, when a police officer, Richard E. LaMunyon, who was aware of the outstanding warrant, heard the dispatcher advise a detective that the defendant was at a pool hall located at Seventeenth and Poplar streets in Wichita. Since the detective did not know the defendant on sight, but LaMunyon did, LaMunyon was dispatched to the scene, where he was met by two other officers. At their request, the defendant walked out of the building with them. When the officers advised him it would be necessary to handcuff him, he resisted. The officers sought to restrain him, and in the ensuing struggle defendant grabbed LaMunyon’s pistol from its holster, and fell to the ground on top of one of the other officers. In the course of LaMunyon’s attempting to retrieve the weapon, the defendant fired the gun and the bullet struck LaMunyon in the right hand. Despite his resistance, defendant was subdued and taken into custody at that time.
Defendant’s initial specification of error is that he was denied his right to a “speedy trial” in violation of the Sixth and Fourteenth Amendments to the United States Constitution and § 10 of the Bill of Rights of the Constitution of the State of Kansas.
Defendant’s point is predicated on the following sequence of events occurring after his apprehension on May 26:
The original complaint was amended the next day to include the felonious assault charge, and an amended warrant for defendant’s arrest was issued. The original warrant apparently was withdrawn. At least die record fails to disclose it was ever executed. The marshal’s return on the amended warrant shows the defendant was arrested and brought before the court of common pleas on September 19, 1966 —116 days after the wounding of Officer LaMunyon. When brought before the court, defendant requested a preliminary hearing, which was set for October 3. Defendant and his retained counsel appeared on the scheduled date, when the matter was continued to October 17, and thence to October 18. On the latter date the state produced several witnesses, and at the state’s request, but over defendant’s objection, the hearing was continued to October 27, at which time it was concluded and defendant bound over for trial in the district court. Defendant’s trial on Count 1 commenced February 27, 1967, and was concluded on the 28th; his trial on Count 2 commenced March 15 and was completed on the 17th.
Defendant’s contentions with respect to denial of a speedy trial are unmeritorious for several reasons.
In the first place, the right of a speedy trial guaranteed by § 10 of the Bill of Rights of the Kansas Constitution does not refer to the preliminary examination but rather to the trial held after an indictment is returned or an information filed. (Witt v. State, 197 Kan. 363, 416 P. 2d 717; Cooper v. State, 196 Kan. 421, 411 P. 2d 652.) No question is raised about the promptness of trial following the filing of the information.
In regard to his preliminary examination, defendant is in no position to complain of the 116-day delay between the time of his apprehension on May 26, 1966, and when he was brought before the examining magistrate on September 19. The record discloses, and it was admitted at oral argument, that at the time he was taken into custody there were outstanding city police court commitments, and pursuant thereto he was confined at the city prison farm until September 19, when he was brought before the magistrate on the amended warrant. An analogous factual situation existed in State v. McGee, 194 Kan. 246, 398 P. 2d 563, where the contention was made that the accused was not provided a preliminary hearing within ten days after his arrest. In the absence of evidence to the contrary, we may presume defendant was held during the 116-day interim in lawful custody on the police court commitments. Even if we disregard for the moment the circumstances justifying the delay in this case, defendant’s claim cannot be supported. We have repeatedly held that undue delay in bringing one accused of a crime before an examining magistrate is not a denial of due process unless such delay in some way deprives the accused of a fair trial. (State v. Dobney, 199 Kan. 449, 429 P. 2d 928; Peterson v. State, 198 Kan. 26, 422 P. 2d 567; Witt v. State, supra; State v. McCarther, 196 Kan. 665, 414 P. 2d 59; Cooper v. State, supra.) Here, defendant has failed to show that his right to a fair trial was prejudiced in any respect by the delay. We should add that according to the marshal’s return, defendant was not arrested on the amended warrant until September 19, 1966, which was the same day he first appeared before the magistrate. Of the several continuances, the defendant objected only to the one from October 18 to October 27, which was less than ten days. Once the accused is brought before the magistrate, a preliminary examination must be conducted without unreasonable delay (K. S. A. 62-610, 62-614) and the examination cannot be continued at any one time longer than ten days over the accused’s objection (K. S. A. 62-611; State v. Badders, 141 Kan. 683, 42 P. 2d 943). Inasmuch as there has been no affirmative showing the continuances here were unnecessary and unreasonable, defendant has no basis for claiming the statutes were violated. (White v. Crouse, 193 Kan. 674, 396 P. 2d 333, cert. denied, 381 U. S. 954, 14 L. Ed. 2d 727, 85 S. Ct. 1814.)
Defendant insists the district court should have sustained his separate motions for new trials because the verdicts were unsup ported by the evidence. In view of the facts narrated earlier, the point is patently without merit. The rule in a criminal case is that on a review of the sufficiency of evidence this court will examine the record to determine if from all of the facts and circumstances disclosed by the evidence the jury could have reasonably drawn an inference of guilt. (State v. Townsend, 201 Kan. 122, 439 P. 2d 70; State v. Patterson, 200 Kan. 176, 434 P. 2d 808; State v. Helm, 200 Kan. 147, 434 P. 2d 796.) On the burglary and larceny offenses, defendant would have us reweigh the testimony of several of the state’s witnesses. This we will not do, for we have consistently adhered to the proposition that it is the function of the jury, not that of the appellate court on review, to weigh the evidence and pass upon the credibility of the witnesses. (State v. Scott, 199 Kan. 203, 428 P. 2d 458.)
Defendant’s remaining specifications relate to numerous alleged trial errors — only a few of which justify discussion.
Complaint is made the court erroneously admitted hearsay testimony of Hazel Simms when she was permitted to testify about her conversation with Peterson, wherein the latter told her that defendant was leaving town and had a television set to sell for $20. The conversation took place in the home where Hazel and Peterson were living. When defendant was in the living room, Hazel was in the adjacent bedroom, and Peterson was standing in the doorway between the two rooms. The basis of defendant’s objection was that it was not clearly shown the conversation took place within his presence and hearing. Hazel’s testimony of Peterson’s statement to her was clearly admissible as an exception to the hearsay rule under K. S. A. 60-460 (i) which codifies in substance the case law previously laid down by this court. (State v. Shaw, 195 Kan. 677, 408 P. 2d 650.) In State v. Borserine, 184 Kan. 405, 337 P. 2d 697, we said:
“. . . Evidence of the acts and declarations of the co-conspirators, done and made in the absence of the accused, is admissible so far as it pertains to the furtherance of the common criminal design, to its consummation, to the disposition of its fruits, and to acts done to preserve its concealment, as an exception to the rule against the admissibility of hearsay evidence. . . .” (p- 411.)
The trial court also properly admitted the testimony of Officer LaMunyon in regard to a conversation which he overheard between the police dispatcher and a detective immediately prior to the de fendant’s apprehension. The testimony was not inadmissible as hearsay evidence for the reason it was not offered to prove the truth of the matter asserted. At most, the evidence provided some explanation of the officer’s action in proceeding to the location where defendant was subsequently taken into custody. (See, State v. Rhoten, 174 Kan. 394, 257 P. 2d 141, and Mills v. Riggle, 83 Kan. 703, 112 Pac. 617.)
Further evidentiary rulings about which defendant complains pertain to the admission of two exhibits, which were colored slides of Officer LaMunyon’s wounded hand. Defendant argues there was no foundation for admitting the exhibits and they were offered solely for the purpose of arousing the passion and prejudice of the jury. After examining the record, we believe there was sufficient showing by extrinsic evidence that the slides were substantially true representations of the injury. (See, Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 420 P. 2d 1019.) Their relevancy and materiality to show the extent of injury is unquestioned, and they were properly admitted into evidence. (State v. Booker, 200 Kan. 166, 434 P. 2d 801, cert. denied, 391 U. S. 965, 20 L. Ed. 2d 879, 88 S. Ct. 2031, and cases cited therein.)
Other rulings of the trial court in regard to the admissibility of evidence upon which defendant predicates error have been examined and found to be lacking in substance. The failure of the court sua sponte to strike the answers of two witnesses and instruct the jury to disregard the testimony was not erroneous for the reasons stated in State v. Minor, 195 Kan. 539, 407 P. 2d 242, and State v. Childs, 198 Kan. 4, 422 P. 2d 898. Further, the court did not abuse its discretion in permitting a witness to testify on rebuttal, although he had previously been present in the courtroom during the testimony of another witness, in violation of the court’s order that all witnesses remain separated. (State v. Smit, 184 Kan. 582, 337 P. 2d 680; State v. Falk, 46 Kan. 498, 26 Pac. 1023; Anno. 14 A. L. R. 3d 16.)
We have examined the court’s instructions in each of the trials and defendant’s contentions that certain of them were improper statements of law and were not warranted by the evidence.
At the outset we would emphasize that the adequacy of instructions is determined by their being considered as a whole, each in conjunction with all other instructions in the case. (State v. Jerrel, 200 Kan. 415, 436 P. 2d 973; State v. Emler, 199 Kan. 443, 430 P. 2d 294.)
In respect to the burglary and larceny trial, defendant argues that the court’s instruction on what constitutes a felonious breaking, which, incidentally, was in substance a restatement of Syllabus ¶ 1 in State v. Gatewood, 169 Kan. 679, 221 P. 2d 392, was inappropriate because there was no evidence that he actually broke into the appliance store. Defendant completely overlooks other instructions— one regarding the guilt of a person as a principal who counsels, aids and abets the commission of an offense, and another instruction on circumstantial evidence. As previously indicated, there was sufficient evidence, even though largely circumstantial, for the jury to find the defendant guilty of the burglary charge.
In answer to defendant’s further objection that the term “with felonious intent” was never defined, an instruction stating the elements of the offense in the words of the statute (K. S. A. 21-520) provided that the breaking and entering must be “with the intent to steal or commit any felony therein.” The instructions, when considered as a whole, fairly and adequately presented the elements of the offense to the jury. (State v. Jorgenson, 195 Kan. 683, 408 P. 2d 683.)
In the felonious assault trial, the jury was also instructed on the lesser included offense under K. S. A. 21-435, which defendant now claims was unwarranted under the evidence. Defendant’s contention is answered by our decisions specifically holding that K. S. A. 21-435 is a lesser included offense in an information charging felonious assault (K. S. A. 21-431), and when the evidence in the case justifies the court’s instructing on the lesser offense, it is its duty to do so. (State v. Hanks, 179 Kan. 145, 292 P. 2d 1096; State v. Davis, 169 Kan. 251, 218 P. 2d 215; State v. Thyer, 143 Kan. 238, 53 P. 2d 907; State v. Wright, 112 Kan. 1, 208 Pac. 630.) The cases relied on by defendant are not in point because under the particular facts of each, the evidence did not justify the giving of instructions on lesser included offenses. Here, on the other hand, there was evidence which warranted a finding that the wounding of the officer took place by the act of the defendant under such circumstances as would have constituted murder or manslaughter if death had ensued, and the court properly instructed on 21-435. (See, State v. Wright, supra.)
The grounds raised in defendant’s separate motions for new trials have for the most part been covered in our opinion. Those not specifically discussed have been examined and were properly rejected by the trial court. We find nothing in this record approaching prejudicial or reversible error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
This is a dispute over title to an acre of land formerly the site of a rural schoolhouse. The contest is between the successor school district and the grantees of the heirs of the owner of the land out of which the acre tract was initially carved.
The facts in the case, so far as they are known, are not in substantial dispute. In 1903 George Chandler owned and was in possession of a 15.61 acre tract in Riley county. On July 10, 1903, Rocky Ford School District No. 70 voted to locate a new school building on the Chandler tract. According to the district’s records $150.00 was paid to Chandler in August, 1903, for a “school house site.” The district took possession of the one acre tract in question and built a schoolhouse on it in 1903. The tract was fenced from the remainder of the Chandler land and the district and its successor districts have maintained and been in possession of it since 1903. No evidence was shown whether the one acre tract was listed for taxation from 1903 to 1937; after 1937 the one acre tract was not so listed and was excluded from the land on which Chandler and his successors paid taxes. Chandler did not at any time execute a deed to the school district. The district held school in the schoolhouse from 1903 until 1937. In 1937 school activities were discontinued, school was transferred to another schoolhouse and thereafter the tract was not used for the holding of school. From 1937 to 1965 various community activities were held in the building. Chandler died in May, 1945. In 1946 his heirs executed a deed to Mary D. and Theodore P. Walton, Jr., appellants herein, conveying to them the 15.61 acre tract initially owned by Chandler.
On May 12, 1965, the Waltons commenced this action by filing their petition to quiet title to and secure possession of the 15.61 acres. Unified School District No. 383 intervened in the action as successor to the named defendant, Strong School District No. 1, successor to the Rocky Ford District, claiming title to the one acre tract contained in the 15.61 acre tract by reason of adverse possession for more than twenty-five years.
Trial to the court resulted in findings and judgment for the school district and plaintiffs have appealed.
The trial court’s findings recited evidentiary facts as already stated and continued as follows:
“7. That the school district does not have a recorded deed to said property; but that the said Strong School District in 1903 did enter into some agreement with the said George Chandler for said one acre tract for which the sum of $150.00 was paid. That from the evidence the Court is unable to determine the terms and conditions of said agreement, but does find that the said Strong School District in 1903 did enter onto said one acre tract of land under a belief of ownership, the nature thereof being unknown, that is whether they acquired fee simple or less than fee simple title.
“8. That in March, 1946, the plaintiffs acquired title to the land described in paragraph one hereof by conveyance from the heirs of George Chandler deceased. That the said plaintiffs however did not take possession of said one acre tract from 1946 until the present time. That the said plaintiffs received tax notices on which said one acre was excluded for tax purposes. That during the period of time from 1946 to the present time the said one acre site was used by the defendant and its predecessors in interest, not for the holding of school, but for community activities and exercised those incidents of ownership described in paragraph 4 above.
“9. The Court further finds that the defendants and their predecessors in interest from 1903 until March, 1946, were in open exclusive and continuous possession of said one acre tract under a claim knowingly adverse and under belief of ownership.
“10. The Court further finds that since March, 1946, at which time the plaintiffs were conveyed this one acre tract by the heirs of George Chandler deceased, that the defendants and their predecessors in interest were in the open, exclusive and continuous possession of said one acre tract from the said March, 1946, until the present time.
“11. The Court further finds that if the agreement between George Chandler and the School District was for less than the fee for said one acre tract, said agreement was repudiated by the School District in 1937, when use as a school was discontinued, and use as a Community Center began and continued until the present time.
“Conclusions of Law
“That by virtue of the defendants and their predecessors in interest adverse possession of said one acre tract, the plaintiffs cannot maintain an action against the defendants for recovery of said real estate and defendant is entitled to said real estate by virtue of the law of adverse possession and title in fee simple is vested in defendant.”
Our present law of adverse possession is based on K. S. A. 60-503 which provides:
“No action shall be maintained against any person for the recovery of real property who has been in open, exclusive and continuous possession of such real property, either under a claim knowingly adverse or under a belief of ownership, for a period of fifteen (15) years. This section shall not apply to any action commenced within one (1) year after the effective date of this act.”
Appellants contend the original occupancy of the one acre tract by the school district was with the permission of the original owner, Mr. Chandler, that its possession remained permissive, and there was never any repudiation by the district of the agreement giving rise to the permissive use. They cite familiar law that use by permission or under a license cannot ripen into a prescriptive right. To support their contention there was no repudiation they rely on K. S. A. 72-834 which provides in part:
“. . . the school building of a district which is consolidated, annexed or disorganized, which building is not being used for school purposes, may be used for neighborhood assemblies and educational, patriotic and other community activities of the character ordinarily using rural schoolhouses as meeting places, and shall not be sold so long as the same is so used if fifty-one percent (51%) of the electors residing in the territory which comprised such district shall within sixty (60) days after the effective date of the order of consolidation, annexation or disorganization, petition the school lJoard having charge of such building not to sell such school building. . . .”
Appellee replies there was evidence to support the trial court’s finding of a repudiation of any permissive agreement with a consequent adverse holding for more than the requisite period of time.
When 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 on substantial competent evidence, is binding upon appeal (see cases cited 1 Hatcher’s Kansas Digest, rev. ed., Adverse Possession, § 34, and Perm. Supp. Vol. 1-3, p. 18; 2 West’s Kansas Digest, Adverse Possession, § 115). In determining whether there is adverse possession our decisions have emphasized the element of intent of the adverse possessor (see Aylesburg v. Lawrence, 166 Kan. 8, 199 P. 2d 474; Tucker v. Hankey, 173 Kan. 593, 250 P. 2d 784; Casner v. Common School District No. 7, 175 Kan. 551, 265 P. 2d 1027; Truck-Trailer Supply Co. Inc. v. Farmer, 181 Kan. 396, 311 P. 2d 1004). In the last cited case we find this:
“It may be stated that the question of adverse possession is one of intention. The intent with which the occupant has held possession is to be determined from all of the surrounding circumstances and especially from the acts of the possessor. His intention need not have been manifested by word of mouth . . . tire acts done must be such as to give unequivocal notice of the claim to the land adverse to the claims of all others and must be of such a character and so openly done that the real owner will be presumed to know that a possession adverse to his title has been taken. . . .” (p. 400.)
Assuming the school district initially took less than a fee simple title, the district’s use and occupancy of the land could be only for school purposes and for no other (see School District v. Barnes, 110 Kan. 25, 202 Pac. 849). In 1937 a school district had no authority to maintain a building solely for the purpose of holding community activities therein. That authority did not come until later with the enactment of Laws, 1951, Chapter 396, Section 13 (now K. S. A. 72-834 already quoted) and then only when empowered by fifty-one per cent of the electors residing in the district. It is true that from 1903 on the governing body of a school district could permit a schoolhouse belonging to tire district to be used for certain type public meetings (see G. S. 1901, §6194) but this authority for outside use contemplated and depended on the fact the building was being used for the holding of school.
In 1937 the district discontinued holding school or school activities on the tract in question. This was an open, visible, physical act. The district continued to occupy the land with no semblance of school activity, and we think an intent to hold adversely was sufficiently manifested so that Mr. Chandler was put on notice that any agreement for less than a fee, if such existed, was being repudiated. Over the entire period from 1937 no one except the district claimed any title to the school grounds. In Casner v. Common School District No. 7, supra, there was evidence a school district had taken a deed to an additional half acre adjoining its school site but the deed was never recorded and had become lost or destroyed. The district had paid for the property, fenced it and made improvements upon it, and had occupied it for more than thirty-seven years. A granddaughter of the original grantor of the property sought to recover it, relying on the absence of a deed. This court denied her claim on the basis the school district had acquired title by adverse possession, emphasizing the fact the original owner, knowing of the use to which the property had been put, had stood by without complaint over a long period of time.
We hold there was sufficient evidence to support the trial court’s finding that in 1937 there had been a repudiation of any agreement and that appellee and its predecessors in title were for more than fifteen years in open, exclusive and continuous possession of the one acre tract under a claim knowingly adverse.
.In view of this conclusion we need devote little time to the trial court’s other finding respecting appellee’s holding under belief of ownership. It too found support in the evidence although concededly the facts developed were scanty. One long-time board member thought the property belonged to the school district and not to Mr. Chander. One of Mr. Chandler’s heirs, an eighty-nine year old daughter, testified the deed she gave to the appellants was in error as to the description; that she told Mrs. Walton the schoolhouse did not go with the property and that only fourteen acres were deeded; the error in description was not discovered until later.
Although not significant to our determination the record also contains considerable indication that proceedings in eminent domain may have been undertaken to secure this one acre although perhaps not formally recorded. Briefly, the eminent domain statute then In effect provided for appointment of three appraisers by the probate court to condemn and appraise property taken for a school site where the district was not able to secure the necessary property by purchase at reasonable rates, donation or otherwise. It also provided for formal recording of certain of the proceedings (G. S. 1901, § 6131). Mr. Chandler s eighty-six year old daughter testified respecting her father not wanting to give a deed to the school board:
“Yes, I heard him say that more than once, he said if they appraised an acre of ground and took it for school, they will have to appraise it, but he wouldn’t give them a deed for it.”
Rocky Ford District’s warrant register shows that in addition to the payment to Chandler for a schoolhouse site, three men were each paid two dollars for “viewing and appraising school site.” Although, as indicated, we do not rest our affirmance upon this point, if in fact the district had actually condemned the acre tract, it would have acquired under the then existing eminent domain statute a fee simple title (Devena v. Common School District, 186 Kan. 166, 348 P. 2d 827.)
We find no error in the judgment appealed from and it is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Kaul, J.:
Petitioner appeals from an order denying relief in a proceeding brought under K. S. A. 60-1507.
The issue on appeal centers on the admission of petitioner’s statement into evidence during his jury trial.
On August 24, 1964, petitioner was arrested and charged on two counts of statutory rape. After his arrest, petitioner was taken to the county attorney’s office where he was informed as to his constitutional rights. The county attorney discussed the charges with petitioner, who was then confined in the county jail. The following morning petitioner asked to see the county attorney again. He was taken by the undersheriff to the county attorney’s office and, after being advised of his rights, made the statement in question. The county attorney typed the statement then handed it to petitioner who read and signed it.
The record discloses that petitioner waived a preliminary hearing and was bound over for trial in the district court.
On September 8, 1964, petitioner appeared before the district court and present counsel was appointed. A plea of not guilty was entered and the case was set for jury trial on September 21, 1964.
During the course of the trial the state offered petitioner’s state ment in evidence. Petitioner objected, the jury was excused, and the trial court heard evidence offered by the state and petitioner as to the voluntariness of the statement.
After hearing the evidence, the trial court found the statement was freely and voluntarily made. The court stated:
“. . . There is no evidence here whatsoever — even from the defendant himself — that any promises or threats or force or intimidation was used in order to influence him in making this statement. . . .”
During the trial, petitioner testified in his own behalf. He denied the charges and testified that the statement was incomplete and had not been written in his exact words. The undersheriff, who was present at the time, testified that the statement was practically an exact account of what petitioner said.
After overruling petitioner’s motion for a new trial, the trial court deferred sentence and referred petitioner to the Topeka State Hospital for an examination and report.
On April 14, 1965, petitioner was returned to Marshall County and sentenced to a term of not less than one nor more than twenty-one years on each count. The trial court directed that the sentences be served concurrently and credit allowed for the time petitioner was confined in the state hospital.
On November 23, 1966, petitioner filed papers entitled “Petition for Writ of Habeas Corpus.” The trial court concluded the papers should be treated as a motion under K. S. A. 60-1507 and directed that forms provided for in Rule No. 121 (Rules of the Supreme Court, 201 Kan. XXXIV) be mailed to petitioner.
On Februaiy 21, 1967, petitioner filed the motion under consideration here. In his motion he contends in essence that the admission of his statement at the trial violated his rights under the Sixth and Fourteenth Amendments to the Constitution of the United States in that he was not properly informed of his rights; that in making the statement he was compelled to testify against himself, due to pressure by the county attorney; and the statement, as written, was not accurate or complete.
Present counsel was appointed to represent petitioner in proceedings before the trial court. On April 12, 1967, a pretrial conference was had and the trial court determined the presence of petitioner was unnecessary.
On June 12, 1967, the trial court heard the motion and there after made findings of fact and conclusions of law. The conclusions pertinent read as follows:
“3. The court concludes as a matter of law that the matters urged in defendant’s motion, and amended motion, were duly considered and disposed of during the trial and post trial proceedings and do not now raise any substantial issues of law or fact.
“4. The defendant was adequately advised of his statutory and constitutional Tights prior to the time he made the statement to the officers.
“5. No statutory or constitutional rights of the defendant were violated at any stage of the proceedings.”
Thereafter petitioner perfected this appeal.
The abstract and counter abstract before us contain what appears to be a complete transcript of the out of court hearing before the trial court on the question of voluntariness. The testimony of petitioner and Undersheriff Walters, pertaining to the statement of petitioner, fully supports the findings and conclusions of the trial court.
The statement itself sets out that petitioner was advised as to his rights to remain silent, protection from compulsory self-incrimination, right to counsel, and a warning that anything petitioner might say could be used against him in court.
Walters testified that petitioner was fully advised of his rights when he first appeared before the county attorney and again on his second appearance the following day.
Petitioner testified in part as follows:
“Q. At the time this was made, were you informed as to your rights?
“A. Yes. I was informed as to my rights and as to counsel.
“Q. And you were informed as to your rights against self incrimination?
“A. Yes.
“Q. And you were informed that you didn’t have to make any statement if you didn’t want to?
“A. Yes.”
Petitioner was a mature adult, a carpenter by trade. The record reflects that when he was interrogated concerning the giving of his statement, his answers were responsive and intelligent. There is no showing that he did not fully understand his position. No claim was made at the trial or in this proceeding that petitioner requested counsel at the time of making his statement.
The trial court heard and determined the question of voluntariness during the trial and then reexamined the evidence in this proceeding. We find nothing in the record to warrant disturbing the trial court’s determination.
This court has repeatedly held that where an accused is fully advised of his rights a confession or statement is not rendered inadmissible solely because it was made at a time when accused did not have counsel. (Holt v. State, 202 Kan. 759, 451 P. 2d 221; State v. Weinman, 201 Kan. 190, 440 P. 2d 575, and Cox v. State, 199 Kan. 797, 433 P. 2d 470.) There is no showing whatsoever that a request for counsel was denied.
As found by the trial court, the motion, files and records of the case conclusively showed that petitioner was entitled to no relief.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Price, C. J.:
This is an action to recover damages resulting from a highway collision.
The appeal is by the original defendants from an order dismissing their petition against third-party defendants.
On February 9, 1967, plaintiff Denneler filed the action against Aubel Ditching Service, Inc., and other defendants — including John R. Pfannenstiel — the employee of defendants Aubel.
The petition alleged that in the nighttime on or about February 9, 1965, plaintiff, while driving on a highway near Hays, was involved in a collision with a motor grader owned by defendants Aubel and being driven by their employee — defendant Pfannenstiel.
The petition further alleged that the negligence of defendants in the operation of the motor grader was the sole and proximate cause of the collision and resulting injuries, and consisted of the following:
Failure to display the lights required for nighttime as set forth in K. S. A. 8-581; driving and knowingly permitting the motor grader to be driven on the highway in an unsafe and ill-equipped condition in violation of K. S. A. 8-580; failure to equip the road grader with lighting as required by K. S. A. 8-588; failure to keep a proper lookout for other vehicles; failure to use due care; operating the road grader on the highway in negligent disregard of the rights and safety of others; operating the road grader on the highway at the time and place knowing that it could not be seen by other motorists in the nighttime so as to avoid an accident; driving at a rate of speed other than reasonable and prudent under the circumstances; failure to display lights, lamps and illuminating or other warning devices on the road grader so as to warn approaching traffic in time to avoid a wreck, and failure to display and operate lamps or flags at the rear and sides of the road grader as prescribed by K. S. A. 8-585.
Defendants’ answer admitted the fact of the collision, but specifically denied plaintiff’s allegations of negligence, and alleged that plaintiff’s negligence was the direct and proximate cause of the collision and resulting injuries.
Later, defendants filed a motion for leave to make Caterpillar Tractor Company and Foley Tractor Co., Inc., parties to the action and that summons and a third-party petition be served upon them.
This motion was allowed, and defendants (as third-party plaintiffs) filed their third-party petition against Caterpillar and Foley as third-party defendants. This petition alleged—
“I. That if in fact the accident occurring on or about February 9, 1965, as complained of in plaintiffs petition, was caused or contributed to by the lights, lamps, or illuminating devices on said road grader as alleged in plaintiff’s petition herein, said damage was caused or contributed to by third-party defendants, Caterpillar Tractor Company, manufacturer, and Foley Tractor Co., Inc., distributor, of said motor grader, in breach of implied and express warranty of merchantability and fitness for use on the part of such third-party defendants.
“2. If defendants were guilty of negligence, which they deny, it was only passive negligence and the negligence of third-party defendants, Caterpillar Tractor Company and Foley Tractor Co., Inc., was the active and primary negligence causing injury to plaintiff, Daniel R. Denneler. If defendants are liable, the third-party defendants, Caterpillar Tractor Company and Foley Tractor Co., Inc., are liable over to defendants for any judgment rendered in favor of plaintiff.
“Wherefore, and by reason of the foregoing defendants, and each of them, pray that they have and recover judgment of and from the third-party defendants, and each of them, for any sum determined to be due and owed by defendants to the plaintiff herein, and their costs.”
Caterpillar and Foley filed motions to dismiss the third-party petition against them.
During the argument on the motions to dismiss the court remarked that “it is quite possible that the third party defendants will go out unless the plaintiff has a cause against the third parties.” In ultimately ruling, however, the court stated—
“In Kansas, the law recognizes no conti'ibution between joint tort feasors as such when they are in pari delicto. This case is distinguished from the case of Russell against Community Hospital, 199 Kan. 251. In the Russell Case the plaintiff’s petition alleged negligence ‘in the construction of the steps causing the plaintiff’s fall and the third party petition was against the contractor who constructed the steps and the court recognized a right of indemnity because the hospital and the contractor were not in pari delicto, and in view of the implied warranties of the contractor in the construction of the steps.
“In the instant case, the case before the court here, the plaintiff’s petition alleges only negligence of the defendant[s], as set out in the petition, in the operation of the motor-grader, and specified 10 allegations of negligence, all of which allege violations of Kansas traffic regulations and acts of commission and omission of defendants named in the petition. There is no allegation of defective equipment or construction.
“If the defendant[s] in this case should have a cause of action against a third party, the same should be brought in a separate action for trial in a separate trial.”
Accordingly, defendants’ third-party petition against Caterpillar and Foley was dismissed.
Defendants have appealed.
Involved here is a provision of K. S. A. 60-214 (a) which reads—
“When defendant may bring in third party. At any time after commencement of the action a defendant, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him. . . .”
The statute was dealt with in Alseike v. Miller, 196 Kan. 547, 412 P. 2d 1007, which was a negligence action arising out of an automobile collision. For a detailed recital of the facts reference is made to the opinion. For our purposes it is sufficient to say that in that case the original defendant sought by way of a third-party petition — to bring into the case parties who were simply alleged joint tort-feasors. On motion of the third-party defendants the third-party petition was dismissed. Defendant appealed from the order of dismissal. This court affirmed — following the rule that in Kansas there is no right of contribution between joint tortfeasors, and that where no right of contribution exists a defendant has no right to bring in under the provisions of K. S. A. 60-214 (a) a joint tort-feasor who was not made a party by the plaintiff.
It also was held that the statute pertains to procedure only and creates no substantive rights, and that third-party practice under the statute is merely a procedural device whereby a party (a defendant) to an action may bring in an additional party and claim against such party because of a claim that is being asserted (by the plaintiff) against the original (a defendant) party.
It was further held that although it is the purpose of the statute to permit the entire controversy to be determined in a single proceeding, it is only the liability of the third-party defendant to the original defendant for the original defendant’s liability to the plaintiff that is to be determined.
If, under the allegations of the pleadings in the case before us Caterpillar and Foley were simply joint tort-feasors — then, under the rule of the Alseike case defendants had no right under the statute to bring them in as third-party defendants — and the third-party petition was properly dismissed.
We hold, however, that under the allegations in question Caterpillar and Foley are not to be considered as joint tort-feasors.
In Russell v. Community Hospital Association, Inc., 199 Kan. 251, 428 P. 2d 783, plaintiff sued the hospital for personal injuries sustained when he fell on outdoor steps which led to the parking lot. His petition alleged negligence on the part of defendant “in the construction, operation and maintenance of said stairway” upon which his alleged fall occurred.
In its answer defendant specifically denied that it constructed the stairway and denied negligence in the construction, operation and maintenance of it. The answer further alleged that if the stairway was improperly constructed the responsibility therefor was with the general contractor and architect who designed and constructed it.
Thereafter defendant hospital filed a third-party petition against the contractor and architect as third-party defendants alleging that if any negligence as charged by plaintiff was found to exist, it was properly the negligence and responsibility of such third-party defendants.
On motion of the contractor and architect the third-party petition against them was dismissed.
The hospital (original defendant) appealed from the order of dismissal.
This court held that the third-party petition was properly filed and that it was erroneously dismissed. In the syllabus it was held:
“3. Where the pleadings in third-party practice disclose that the negligence of the third-party defendant may prove to be the primary or active cause of the injury and the original defendant, as the third-party plaintiff, would be entitled to indemnity, the third-party complaint is not one designed to exact contribution between joint tort-feasors, but one designed to seek indemnity from the third-party defendant by reason of his primary liability, and the third-party complaint comes within the provisions of K. S. A. 60-214 (a).
“4. The provision in K. S. A. 60-214 (a), authorizing any party to move for dismissal of a third-party claim, does not grant the trial court discretionary power on the third-party defendant’s motion to dismiss a third-party complaint, where the third-party complaint is properly filed in the action.”
In other words, it was held that defendant hospital’s claim against the contractor and architect (as third-party defendants) was a claim for indemnity arising out of separate and distinct negligence and not out of a pari delicto relation. Here — as in the Russell case — we are not at liberty to speculate as to what the evidence may eventually establish concerning the alleged negligence of defendants — prior to discovery proceedings and pretrial. The plead ings must be taken at their face value. So construed, we believe that under the rule of the Russell case and the authorities there cited and also in the Alseike case relating to the right of indemnity— the third-party petition before us states a claim for indemnity against the third-party defendants — and therefore was erroneously dismissed.
The order of dismissal is reversed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was an action by Charles H. Casebeer to recover the entire amount of compensation awarded to him by the judgment of the McPherson district court on March 24, 1967, by reason of the failure of his employer’s insurance carrier to pay all compensation due within twenty days after demand on May 13, 1967, as. provided in K. S. A. 44-512a. The appeal arises out of the following:
On April 12, 1965, Charles H. Casebeer, hereafter referred to as-the plaintiff, sustained an accidental injury in the course of his employment. On August 5, 1965, he commenced a proceeding before the Workmen’s Compensation Director to recover compensation from his employer-brother, J. W. Casebeer, d/b/a Casebeer Oil Operations, and his insurance carrier, Alliance Mutual Casualty Company, hereafter referred to as Alliance. The application was-heard by a workmen’s compensation examiner, and on May 9, 1966, an award of compensation was made in favor of the plaintiff and against the employer and Alliance for 22 weeks of temporary total disability at the rate of $42 per week totaling in the sum of $924 which was ordered paid in one lump sum, and fifteen percent permanent partial general disability for 393 weeks at the rate of $7.18 per week, together with various medical expenses.
Thereafter, the plaintiff made timely written request to the Director of Workmens Compensation to review the award pursuant to K. S. A. 44-551. Upon review, and on July 16, 1966, the Director modified the award by increasing the weekly compensation to $12.93 per week. Based upon his findings, the Director awarded compensation for 22 weeks of temporary total disability at the rate of $42 per week, or the sum of $924, and 393 weeks of permanent partial disability at the rate of $12.93 per week based upon a fifteen percent disability to the body as a whole. The Director found that as of July 17, 1966, there was due and owing the plaintiff for temporary total disability the sum of $924 plus 45 weeks of permanent partial disability at the rate of $12.93 per week in the amount of $581.85, or a total sum of $1,503.93, all of which was ordered paid in a lump sum less any amount previously paid by the employer and Alliance. The remaining 348 weeks were ordered paid at the rate of $12.93 per week until fully paid or until the further order of the Director. In addition, the Director ordered the payment of the plaintiffs medical expenses in the amount of $2,988.08, which amount was not in dispute if the plaintiff was entitled to compensation.
The employer and Alliance timely perfected an appeal from the award of the Director to the McPherson district court, case No. 13,813, and Alliance made weekly payments to the plaintiff of $12.93 per week pursuant to K. S. A. 44-556, for a total of $308.20, •during the pendency of the appeal.
On March 24, 1967, the appeal was heard and the district court made no separate findings of its own, but adopted the Director’s findings and award in all respects, and entered judgment in favor •of the plaintiff accordingly.
On the same day, March 24, 1967, the employer and Alliance filed notice of appeal to the supreme court, appealing from the district’s court’s judgment in favor of the plaintiff. However, they failed to comply with the provisions of 44-556 by paying compensation awarded by the district court and no compensation, including medical expenses, was paid during the pendency of the appeal.
On the following day, March 25, the plaintiff served upon Alliance his statutory demand pursuant to 44-512a for all compensation then due and unpaid.
Three days later, March 28, 1967, the plaintiff served notice of his cross-appeal upon the employer and Alliance that he was cross- appealing from the order overruling his motion to dismiss their appeal from the award of the Director to the district court, and for failure of the district court to increase the amount of compensation to be awarded him in accordance with the evidence.
The employer and Alliance failed to pay compensation within twenty days in accordance with the plaintiff’s written demand of March 25, or as required by 44-556, and on May 13, 1967, the plaintiff served a second statutory demand upon Alliance pursuant to 44-512a for all compensation then due and unpaid, and demanded payment within twenty days of the entire amount awarded by the judgment of the district court, and for failure to pay the same, an action would be commenced for the collection of the entire amount awarded by said judgment in like manner as for the collection of a debt.
On August 2, 1967, the employer and Alliance having again refused to comply with the plaintiff’s written demand, he commenced this 44-512a action against Alliance in the district court, case No. 13,976. His petition sought recovery of the entire amount of compensation awarded by the judgment of the district court, including temporary total disability and permanent partial disability in the amount of $6,005.49, and medical expenses in the sum of $2,988.08. Paragraph 5 of the plaintiff’s petition alleged that Alliance, as the employer’s insurance carrier, had assumed all obligations of the employer under the Workmen’s Compensation Act and that the action was brought by reason of the unjust refusal of Alliance to pay the compensation awarded, and sought recovery of attorney’s fee under K. S. A. 40-256 in the amount of $2,799.59. The prayer was that the plaintiff recover judgment against Alliance in the amount of $5,410.71, together with medical expenses in the amount of $2,988.08, and for attorney’s fee in the sum of $2,799.59, or a total amount of $11,198.39, for costs of the action, and for such other relief as just and proper.
On September 13, 1967, Alliance filed its answer to the plaintiff’s petition and admitted that on March 24, 1967, the district court entered an award of workmen’s compensation in favor of the plaintiff; that plaintiff had made proper demand upon it for payment of the same under 44-512a; that no weekly compensation had been paid subsequent to March 24, 1967, and that none of the medical expenses had been paid. Alliance alleged the award of compensation had been appealed to the supreme court, and that the appeal was set for hearing on October 3, 1967. Alliance denied all other allegations not specifically admitted.
On a date not disclosed by the record, but following the filing of Alliance’s answer, the plaintiff filed a motion for summary judgment on the grounds that the answer stated no defense to the plaintiff’s cause of action, and that there was no genuine issue as to any material fact existing between the parties.
On October 6, 1967, a pretrial conference was had. Upon consideration of the arguments and stipulations of counsel, the pleadings, affidavits, depositions, and interrogatories submitted, the court made the following order.
“1. The parties have agreed to be bound by the following stipulations:
“A. It is stipulated that on March 24, 1967, the District Court entered judgment against the defendant in Case No. 13,813, and that this case should be considered as evidence in the present case.
“B. It is stipulated that tire defendant has made no weeldy compensation payments subsequent to March 24, 1967, and that none of the medical expenses due in Case No. 13,813 have been paid.
“C. The defendant stipulates that written demand was made upon the defendant for payment of weeldy compensation and medical expenses pursuant to K. S. A. 44-512a.
“D. It is stipulated by the parties that Case No. 13,813 has been appealed to the Supreme Court, and that argument on said appeal has been heard.
“2. The remaining issues of fact to be determined are as follows:
“A. The total amount of compensation and medical payments due under Case No. 13,813 in the District Court of McPherson County, Kansas.
“3. The remaining question of law to be decided is as follows:
“A Whether by reason of K. S. A. 44-512a and K. S. A. 44-556 the total ■amount of the judgment in Case No. 13,813 is due from the defendant to the plaintiff in the present case, which is Case No. 13,976, whether or not Case No. 13,813 is reversed.
“4. In addition to the foregoing, the Court made the following orders:
“A. Plaintiff was allowed to amend his petition by striking Paragraph 5 of said petition, and by eliminating the figure of $2,799.59 from the fourth line of the prayer of said petition, and by amending the figure of $11,189.39 on the fifth line of the prayer of the petition to $8,398.79.
“The Court further allowed the plaintiff to amend the figure shown in the last line of the first paragraph of his motion for summary judgment from $9,399.80 to $8,399.80.
“It is by the Court further ordered that further pretrial of this matter be continued to November 17, 1967." (Emphasis supplied.)
On October 30, 1967, and in accordance with paragraph 4 A of the court’s pretrial order, the plaintiff filed his amended petition and eliminated paragraph 5 thereof relating to the recovery of attorney’s fee (see Walker v. Davis Van & Storage Co., 198 Kan. 452, 424 P. 2d 473), and amended his prayer accordingly, so that the amount for which recovery was sought was equal to and in accord with the amount of the district court’s judgment in case No. 13,813.
In the meantime, the employer and Alliance’s appeal was docketed in this court as case No. 45,053, and was heard at the October 1967 Session. At no time during the pendency of the appeal, or during the oral argument, was this court advised by counsel for either party of Alliance’s failure to comply with the provisions of 44-556 during the pendency of the appeal by regularly paying the compensation awarded by the district court, or that the plaintiff’s 44-512a action had been filed in the district court and that Alliance’s answer alleged no defense; or that the plaintiff had filed a motion for summary judgment, or that a pretrial order had been entered authorizing the plaintiff to file an amended petition. In all those matters, this court was kept completely in the dark. Be that as it may, this court’s opinion was filed on Saturday, November 13, 1967, and is reported as Casebeer v. Casebeer, 199 Kan. 806, 433 P. 2d 399. The opinion affirmed the judgment of the district court but modified it with directions to enter judgment for compensation due the plaintiff on the basis of an average weekly wage of $69.29, which would yield a weekly compensation rate of $6.23 per week. On December 6,1967, the mandate was forwarded to the clerk of the district court.
As indicated, the district court continued further pretrial conference in the action until Tuesday, November 17, 1967. However, upon receipt of a copy of this court’s opinion, and on Monday, November 16, 1967, Alliance mailed to the plaintiff eight drafts which he received on November 17, in payment of $2,988.08 for medical expenses, and $2,737.16 for compensation which he concedes was equivalent to the amount of compensation due by reason of this court’s modification of the judgment entered by the district court, less $308.20 paid by Alliance during the pendency of the appeal to the district court. No interest was allowed from the date of Alliance’s default following the plaintiff’s statutory demand on May 13, 1967.
Subsequently, the plaintiff pressed for hearing on his motion for summary judgment which was heard December 29, 1967. The district court concluded the plaintiff’s average weekly wage of $69.29, as fixed by this court’s decision, was controlling in both the workmen’s compensation case and the plaintiff’s 44-512a action, and said amount having been paid, the plaintiff’s action was dismissed on February 9, 1968. This appeal followed.
The plaintiff contends that 44-512a creates a new and distinct cause of action in favor of the workman; that where there is a failure to pay compensation within twenty days after receipt of a statutory demand, the entire amount of compensation awarded is accelerated and immediately becomes due and payable for the specific amount, which is recoverable in a separate action in like manner as for the collection of a debt; that where such an action is commenced and the defendant’s answer alleges no legal defense, it is immaterial whether the award or judgment could be modified on appeal (44-556), or on review and modification (44-528), and a subsequent decision in either procedure does not affect the amount matured by the demand and default of the person liable.
Alliance takes the position that it can with impunity refuse to pay compensation after the statutory demand matured, proceed with its appeal in this court in complete disregard of the provisions of 44-556, take advantage of any possible reduction on appeal of the amount of compensation awarded, and in turn, use such amount to reduce the compensation the workman may recover in his previously commenced 44-512a action. It further argues that rather than pay the compensation matured by the statutory demand, it elected to let the plaintiff “pursue his various remedies of collection and hope that no money was collected until this Court decided that appeal”; that it expected the plaintiff to enforce the district court’s judgment by the issuance of execution, which procedure, it states, was approved in Lenon v. Standard Oil Co., 134 Kan. 289, 5 P. 2d 853; but, instead, the plaintiff chose to pursue his statutory remedy and commenced his separate 44-512a action, “which was wholly unnecessary because he already had a District Court judgment,” and that thereafter, and on November 16,1967, Alliance paid the plaintiff the entire amount awarded by this court. Alliance states it does not dispute “that the demand made under K. S. A. 44-512a accelerated and made immediately payable all future installments.” In considering the contention, it should be noted there was no stipulation of counsel in the pretrial order that pending the appeal in case No. 45,053, no compensation would be paid.
We are of the opinion the district court erred in dismissing the plaintiff’s action. Section 44-512a was adopted by the Legislature in 1943, and this court has construed and applied its provisions in a whole series of cases. Without deviation, it has been held that if any compensation awarded shall not be paid when due, then, following service of the written demand provided for, continued nonpayment for twenty days thereafter accelerates the entire amount of compensation awarded, which immediately becomes due and payable, and the person entitled thereto may maintain an action to recover the specific amount in like maimer as for the collection of a debt. (Ellis v. Kroger Grocery Co., 159 Kan. 213, 152 P. 2d 860, 155 A. L. R. 546; Miller v. Massmann Construction Co., 171 Kan. 713, 237 P. 2d 373; Owen v. Ready Made Buildings, Inc., 180 Kan. 286, 303 P. 2d 168; Owen v. Ready Made Buildings, Inc., 181 Kan. 659, 313 P. 2d 267; Redenbaugh v. State Department of Social Welfare, 187 Kan. 320, 356 P. 2d 279; Fleming v. National Cash Register Co., 188 Kan. 571, 576, 363 P. 2d 432; Bentley v. State Department of Social Welfare, 187 Kan. 340, 356 P. 2d 791; Harris v. Moore Associates of Topeka, 188 Kan. 822, 365 P. 2d 1085; Teague v. George, 188 Kan. 809, 365 P. 2d 1087; Hughes v. Bituminous Casualty Corporation, 189 Kan. 92, 368 P. 2d 13.)
The statute is the declared public policy of the state that compensation awards shall be promptly paid, and is the means selected by the Legislature to insure their enforcement and applies to all awards or judgments without the slightest qualification. (Miller v. Massman Construction Co., supra, p. 717.) Its terms become a part of the contract of employment and are binding upon the employer and workman alike. (Carter v. State Department of Social Welfare, 184 Kan. 825, 828, 339 P. 2d 5.) Its provisions are remedial in character and deprive the employer and his insurance carrier of no vested rights. (Ellis v. Kroger Grocery Co., supra, p. 218.) They were intended to supplement existing remedies, and apply to a different state of facts from those embraced in the provisions of the Act prior to its adoption. (Teague v. George, supra, p. 815.) They clearly give the workman the right to maintain, and a court the power to hear and determine the action (Babcock v. Dose, 179 Kan. 298, 302, 293 P. 2d 1007), and the burden of avoiding effects following service of a written demand is upon the employer and his insurance carrier, not the workman. (Owen v. Ready Made Buildings, Inc., supra [p. 664].)
Under the remedy provided, the employer and his insurance carrier have the choice of protecting their vested rights by merely complying with the terms and requirements of the Director’s award by which they are bound, and with the provisions of K. S. A. 44-556, during the pendency and determination of their appeal to the district court (Teague v. George, supra; Cramer v. Blankenship Painting & Decorating Co., 197 Kan. 360, 416 P. 2d 255; Scammahorn v. Gibraltar Savings & Loan Assn., 197 Kan. 410, 416 P. 2d 771), and they may appeal from any findings or order of the district court to this court on questions of law by merely complying with the terms of its judgment by which they are likewise bound, and with the provisions of 44-556, until the judgment is affirmed, reversed, or modified (Carter v. State Department of Social Welfare, supra, p. 828; Teague v. George, supra; Tompkins v. Rinner Construction Co., 196 Kan. 244, 409 P. 2d 1001), or permit the workman to invoke the remedy and proceed to collect all compensation matured by his written demand and their default. (Ellis v. Kroger Grocery Co., supra, p. 218; Miller v. Massmann Construction Co., supra, p. 722; Carter v. State Department of Social Welfare, supra, p. 828; Owen v. Ready Made Buildings, Inc., supra, pp. 389, 390; Teague v. George, supra, p. 815; Hughes v. Bituminous Casualty Corporation, supra, p. 93; Fleming v. National Cash Register Co., supra, p. 576.) The statute may be rigorous, but it is possible to comply with its provisions. (Miller v. Massman Construction Co., supra, p. 342.)
Prior to its amendment in 1961, 44-556 contained no provision requiring the employer and his insurance carrier to pay compensation pending an appeal to the district court, or to this court on questions of law. In Teague v. George, supra, which perhaps gave rise to the amendment, it was held that failure of the employer to pay compensation pending his appeal to the district court, following service of a written demand, permitted the workman to collect the specific amount matured in a separate 44-512a action, notwithstanding the employer’s appeal remained undetermined in the district court. As amended, the pertinent portion of 44-556 reads:
“. . . That the perfection of an appeal to the district court shall not stay the payment of compensation due for the ten-week period next preceding the director’s decision, and for the period of time after the director’s decision and prior to the decision of the district court in such appeal: Provided further, That any party to the proceedings may appeal from any findings or order of the district court to the supreme court on questions of law: Provided, however, The compensation payable under the decision of the district court shall not be stayed pending such appeal to the supreme court.”
It has always been held that the employer may appeal at will from the award of the Director (Bentley v. State Department of Social Welfare, supra; Harris v. Moore Associates of Topeka, supra; Teague v. George, supra), and from the judgment of the district court on questions of law (Mitchener v. Daniels, 187 Kan. 765, 359 P. 2d 872, Dexter v. Wilde Tool Co., 188 Kan. 816, 821, 365 P. 2d 1092; Magers v. Martin Marietta Corporation, 193 Kan. 137, 392 P. 2d 148), by complying with the provisions of the Act for the taking of appeals prescribed in detail in 44-556 which are complete and exclusive. (Krueger v. Hoch, 202 Kan. 319, 447 P. 2d 823.) But no provision is found in that section, or elsewhere in the Act, authorizing the staying of payment of compensation pending an appeal, or staying the enforcement of any remedy available to the workman, including the prosecution of a 44-512a action, where the compensation awarded is not paid. (Teague v. George, supra.) On the contrary, the language that compensation “shall not be stayed” pending an appeal to either court imposes an affirmative duty to pay compensation. Hence, it may be said the statutory scheme of the 1961 amendment was to make the time within which to serve the statutory demand and the time for the employer to appeal to the district court coextensive, and to permit the employer to have his “day in court” by securing judicial review of the validity of the Director’s findings and award, but conditioning his right to review upon the continued payment of compensation pending such an appeal, which suspends all remedies of collection available to the workman until the award or judgment is set aside, modified, affirmed or reversed. (Scammahorn v. Gibraltar Savings & Loan Assn., 195 Kan. 220, 404 P. 2d 165.) In Krueger v. Hoch, supra, it was said:
“By the plain language of the statute the right of appeal to the supreme court is qualified by the requirement that compensation payable be not stayed. In other words, continuance of payments is a prerequisite of the right to appeal as well as a requirement pending appeal. . .” (1. c. 321.) (Emphasis supplied.)
The foregoing conclusion complements and confirms our holding in Tompkins v. Rinner Construction Co., 194 Kan. 278, 389 P. 2d 578, where compensation was continuously paid pending the appeals, and in Tompkins v. Rinner Construction Co., 196 Kan. 244, 409 P. 2d 1001, to the effect the Act contains no provision for restitution or the right to recover back such payments of compensation. Other decisions involving the point are in accord. In Scam mahorn v. Gibraltar Savings & Loan Assn, 195 Kan. 273, 404 P. 2d 170, it was contended the respondent’s payments and tender of compensation pursuant to the statute constituted an acquiescence in the Director’s award. It was said they did not, but were “merely a compliance with the procedure outlined by the statute where appeal is taken.” (p. 277.) The cases of Teague v. George, supra; Dexter v. Wilde Tool Co., supra, and Harris v. Moore Associates of Topeka, supra, were decided after the 1961 amendment became effective, but the appeals were perfected prior to its effective date and the statute was not applied. In Magers v. Martin Marietta Corporation, supra, the statute was considered and it was said an appeal to the supreme court is taken and perfected by the filing of a written notice of appeal with the clerk of the district court within the time prescribed, and proof of service upon the appellee and his counsel was unnecessary. In Scammahorn v. Gibraltar Savings & Loan Assn., 197 Kan. 410, 416 P. 2d 771, the claimant-appellee moved to dismiss the appeal to the district court for refusal to pay ten weeks compensation preceding the Director’s award. The district court overruled the motion and affirmed the award on the merits. The employer appealed to this court, but the claimant failed to cross-appeal from the denial of his motion to dismiss. It was held that “the propriety of the district court’s action in denying claimant’s motion to dismiss cannot be considered by this court in the absence of a cross-appeal from that ruling.” (p. 412.) (See Syl. ¶2.) See, also, Cramer v. Blankenship Painting & Decorating Co., 197 Kan. 360, 416 P. 2d 255, and Hunter v. General Motors Corporation, 202 Kan. 166, 446 P. 2d 838.
Alliance attempts to justify its failure to comply with 44-556 pending its appeal to this court on the ground that if the appeal were sustained and the case reversed, it could not have restitution or “recover back” the amount of compensation paid the plaintiff as directed by the judgment of the district court. The point is well taken. (Tompkins v. Rinner Construction Co., 196 Kan. 244, 409 P. 2d 1001.) But the law of this state does not permit Alliance to make its own private adjudication in that respect, and its excuse is unavailable. It may not on the one hand violate the statute and obtain appellate review, and on the other hand be immune to legislative remedies made available to the workman and pursued by him upon its default pending its appeal.
As indicated, this court was kept completely in the dark concern ing Alliance’s willful disregard of 44-556 pending its appeal, and of proceedings in the plaintiff’s 44-512a action in the court below. Had we been so advised, this court would have dismissed the appeal, and its decision on the merits under the circumstances which attend may not be construed to operate to Alliance’s advantage, or to the plaintiff’s disadvantage, since it was obtained by Alliance in violation of law.
We are of the opinion the plaintiff’s acceptance of the eight drafts mailed him on November 17, 1967, did not constitute an acquiescence in the compensation judgment. In the first place, the provisions of the Workmen’s Compensation Act must be liberally construed in favor of the workman with the view of effecting its objective (Ellis v. Kroger Grocery Co., supra), and its primary purpose is to provide compensation to workmen entitled thereto with minimum delay. (Kuhn v. Grant Co., 201 Kan. 163, 171, 349 P. 2d 155.) In the second place, the plaintiff’s written demand and Alliance’s default twenty days thereafter matured all compensation awarded the plaintiff by the judgment of the district court and fixed the specific amount he was entitled to recover, to be determined by mere mathematical calculation, together with statutory interest from the date the award became due and payable. (Fleming v. National Cash Register Co., supra, Syl. ¶ 7.) Alliance’s answer admitted its statutory liability for the amount matured, which was confirmed by its counsel’s stipulation in the pretrial order. The fact that the plaintiff had not obtained a ruling on his motion for summary judgment prior to the hearing of Alliance’s appeal, or our decision in Casebeer v. Casebeer, supra, does not affect the issues in the case below, or change the amount recoverable in that action. In the third place, the plaintiff’s claim for relief under 44-512a was a separate action which involved a different state of facts than those upon which the compensation judgment was predicated. Upon Alliance’s failure to comply with 44-556 pending its appeal, and the plaintiff’s service of written demand and the default thereafter, the compensation judgment formed the basis of the plaintiff’s action and was consumed by or implanted into that cause of action, hence, there was no judgment in the compensation case in which the plaintiff could acquiesce. In the fourth place, compensation payments due the plaintiff were delinquent when he served written demand, and acceptance of any payment thereafter did not bar his 44-512a action. In Redenbaugh v. State Department of Social Wel fare, 187 Kan. 320, 356 P. 2d 794, it was contended that acceptance of payment after service of statutory demand constituted a good defense to an action brought pursuant to 44-512a. The contention was denied, and it was said:
“. . . The answer depends upon what the facts show with respect to payments and when they were made, and, if delinquent within the language of the mentioned statute, acceptance of payments would not bar the action. (Miller v. Massman Construction Co., 171 Kan. 713, 721, 237 P. 2d 373; Owen v. Ready Made Building, Inc., 180 Kan. 86, Syl. 3, 303 P. 2d 168; Owen v. Ready Made Buildings, Inc., 181 Kan. 659, 313 P. 2d 267, and Bentley v. State Department of Social Welfare, case No. 42,077, 187 Kan. 340, 356 P. 2d 791, this day decided.)” (1. c. 322.) (Emphasis supplied.)
See, also, Hunter v. General Motors Corporation, supra.
The case of Neufeld v. Mid-Continent Casualty Co., 193 Kan. 131, 391 P. 2d 1009, is not in point. It' is unnecessary to review the case in detail, and the reader is referred to the opinion. Suffice it to say, the insurance carrier complied with the provisions of 44-556 pending the employer’s appeal from the Director’s award to the district court, and to this court from the judgment of the district court sustaining the award. Upon trial of the plaintiff’s 44-512a action, the court specifically found no compensation was due and payable by the insurance carrier when the action was filed. Moreover, the plaintiff’s written demand was served during the twenty-day period the employer was authorized to perfect his appeal to the district court, and during that time no compensation was to be paid the plaintiff. (44-556.) The point is fully covered in Hunter v. General Motors Corporation, supra, Syl. ¶ 1.
For reasons set forth above, the judgment of the district court is reversed with directions to overrule Alliance’s motion for summary judgment, to sustain the plaintiff’s motion for summary judgment, and compute the amount due the plaintiff in accordance with 44-512a, together with the statutory interest, and to credit such total amount with the amount of the eight drafts mailed by Alliance to the plaintiff on November 16,1967.
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|
The opinion of the court was delivered by
Harman, C.:
This is an action by an insured against his insurer to declare the extent of uninsured motorist coverage in an automobile insurance policy. Trial to the court upon stipulated facts resulted in judgment for the defendant insurer from which plaintiff insured has appealed.
The issue is whether the policy should be interpreted to provide $10,000 or $20,000 coverage for damage inflicted by an uninsured motorist.
Plaintiff, a Wichita police officer, while riding a motorcycle on duty, collided with another automobile. Further background may best be understood by quoting the stipulation of facts upon which the action was submitted to the trial court, as follows:
“1. On October 4, 1966, the plaintiff had in effect a policy of insurance, number AF 387422. A copy of said policy, and endorsements, is attached to the pleadings filed herein, marked Exhibit 1, and made a part of this stipulation. The petition and answer are made a part of this stipulation.
“2. On the date aforesaid, the plaintiff was involved in an automobile accident while riding a motorcycle. As a result of the accident, plaintiff received permanent injuries.
“3. Plaintiff contended that the motorist with whom he collided, or the motorist whom plaintiff contended caused the accident were either one or both uninsured motorists. Defendant denied this contention.
“4. Subsequent to the accident arbitration proceedings were commenced pursuant to the terms of the insurance policy, and in accordance with the stipulation and agreement of the parties hereto. The parties submitted to arbitration the following questions:
“(a) Whether or not either of the motorists were uninsured;
“(b) The legal liability of either of the motorists for the injuries to plaintiff; and
“(c) The dollar value of the injuries and damages sustained by the plaintiff.
“5. The parties agreed that a declaratory judgment action would be filed and expressly reserved, for determination by the court, the question as to the amount of coverage provided by the policy. The parties further agreed that if the award of the arbitrator exceeded the sum of $10,000.00, the defendant would pay the sum of $10,000.00, and this court would determine what, if any, additional amounts were due under the policy.
“6. On July 10, 1967, the arbitrator made an award in favor of the plaintiff and against the defendant in the sum of $20,000.00.
“7. Defendant has paid the sum of $10,000.00, and the parties request the court to determine whether or not plaintiff is entitled to the additional sum of $10,000.00.
“8. The parties agree that the court has jurisdiction of the parties and the subject matter of the action, that there are no disputed issues of fact, and that the court may render judgment on this stipulation and the briefs of the parties.”
The petition and answer followed this stipulation, joining issue on policy interpretation as to amount due. Additionally, plaintiff asked for attorney fees under K. S. A. 1968 Supp. 40-256.
The concept of uninsured motorist coverage is relatively new, being largely developed since 1956. Excellent discussions on the nature and history of the subject may be found at 11 Am. Jur. Trials, Uninsured Motorist Claims, p. 77; 62 Northwestern University Law Review 497 and 43 Notre Dame Lawyer 5. This is our first case involving uninsured motorist coverage. Various aspects of the subject have reached other appellate jurisdictions with not always harmonious results (see cases in ALR 2d Later Case Service for 79 ALR 2d 1252). Many of the cases present different factual situations and some turn on the question whether various policy limitations and exclusions amount to restriction of mandatory statutory coverage. We have no such question as the coverage here is a voluntary type, the insurance contract having been executed prior to the effective date of our recently enacted uninsured motorist law (K. S. A. 1968 Supp. 40-284, et seq.). For our purposes we may say uninsured motorist coverage is protection afforded an insured by first party insurance against bodily injury inflicted by an uninsured motorist, after the liability of the uninsured motorist for the injury has been established.
We should first note provisions of the policy pertinent under the contentions of each side. On its declaration page the following appears:
“3. The insurance afforded is only with respect to such of the following coverages as are indicated by specific premium charge or charges. On each described owned automobile . . . the insurance afforded is only with respect to such coverages as are indicated for each described automobile by specific premium charge or charges. The limit of the company’s liability against each such coverage shall be as stated herein, subject to all the terms of this policy having reference thereto.”
Car 1 and Car 2 are later described in the policy as a 1963 Dodge and a 1955 Plymouth.
Other pertinent provisions in the insuring agreement are:
“PART IV — Protection Against Uninsured Motorists
“Coverage J — Uninsured Motorists (Damages for Bodily Injury). To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury,’ sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.
“ ‘insured’ means:
“(a) the named insured and any relative;
“(b) any other person while occupying an insured automobile; and “(c) any person, with respect to damages he is entitled to recover because of bodily injury to which this Part applies sustained by an insured under (a) or (b) above.
“The insurance afforded under Part IV applies separately to each insured, but the inclusion herein of more than one insured shall not operate to increase the limits of the company’s liability.
“Exclusions. This policy does not apply under Part IV:
“(a) to bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by the named insured or a relative, or through being struck by such an automobile.
“Limits of Liability.
“(a) The limit of liability for uninsured motorists coverage stated in the declarations as applicable to ‘each person’ is the limit of the company’s liability for all damages, including damages for care or loss of services, because of bodily injury sustained by one person as the result of any one accident and, subject to the above provision respecting each person, the limit of liability stated in the declarations as applicable to ‘each accident’ is the total limit of the company’s liability for all damages, including damages for care or loss of services, because of bodily injury sustained by two or more persons as the result of any one accident.
“Other Insurance. With respect to bodily injury to an insured while occupying an automobile not owned by the named insured, the insurance under Part IV shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.
“Except as provided in the foregoing paragraph, if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.”
“Conditions
“4. Two or More Automobiles — Parts, I, II and III. When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each, but an automobile and a trailer attached thereto shall be held to be one automobile as respects limits of liability under Part I of this policy, and separate automobiles under Part III of this policy, including any deductible provisions applicable thereto.”
Highly summarized, the position of the parties upon appeal is: First, each contends the policy clearly and unambiguously declares the coverage afforded by the policy. Plaintiff says this declaration is the sum of $20,000; defendant says $10,000. Each party makes an additional contention. Plaintiff argues in the alternative the language of the policy is ambiguous and should be strictly construed against the insurer so as to permit coverage of $10,000 for each automobile insured under it, or $20,000. Defendant contends the provisions of the “other insurance” clause limit its liability to a total of $10,000.
Let us pursue each party’s contention the policy is clear and unambiguous as to declaration of applicable coverage. Defendant points first to paragraph 3 of the declaration page providing “The limit of the company’s liability against each such coverage shall be as stated herein”, then to the “Limits of Liability” column under which coverage is stated for uninsured motorists as “10 thousand dollars each person”, and finally, to the Part IV declaration under limits of liability that “The limit of liability for uninsured motorists coverage stated in the declarations as applicable to ‘each person is the limit of the company’s liability for all damages . . . sustained by one person. . .
Countering the above is the fact “coverage” is used in the foregoing in the singular whereas paragraph 3 of the declaration page also uses the term “coverages” in the plural followed by “as are indicated for each described automobile by specific premium charge or charges”, which suggests that the number of coverages is to be reflected in the number of premiums paid. Hence the stated limit of liability is directed against “each such coverage” (Our italics) as used in paragraph 3. When two independent premium charges of equal amount are made, the same argument may be directed toward the use of the expression “10 thousand dollars each person” and the Part IV clause “The limit of liability for uninsured motorists coverage [singular] stated in the declaration.” It is apparent the uninsured motorist coverage has been added to the standard form already in use for other type automobile casualty insurance. Some of the uncertainty in its statement of coverage may arise from the fact this particular form was never designed for a kind of coverage not tied to a particular automobile. Each party presents an argument that inferentially paragraph 4 of the conditions clause supports its interpretation but we see no great comfort there for either.
The result is, if only one premium were paid for one vehicle, there is no occasion for use or consideration of the plural and no question as to the amount of coverage ever arises but where, .as here, two premiums were paid for two vehicles, the answer is not so clear. The policy simply does not state plainly, explicitly and unmistakably just what the coverage is.
Defendant points to the “other insurance” clause as limiting its liability to $10,000. We should make clear the first paragraph of that clause has no application (it is not contended otherwise) because here there was no other insurance applicable as primary insurance to the motorcycle upon which plaintiff was riding so as to create an “excess” situation.
Defendant seeks advantage of the second paragraph which provides that if the insured has “other similar insurance available to him and applicable to the accident” the damage shall not exceed the higher limits of the two coverages and moreover shall be prorated between the two. Defendant in effect argues the coverages on car 1 and on car 2 constitute “other” insurance between the two so as to result either in limiting or prorating its total liability to $10,000. We think not. The word “other” has a well understood, plain meaning. Webster’s Third New International Dictionary, p. 1598, defines it:
“. . . not being the one (as of two or more) first mentioned or of primary concern . . . being the ones distinct from the one or those first mentioned or understood . . . not the same: different. . . . More, additional. . . .”
As used in an insurance policy we think the term “other insurance” means insurance in addition to that effected by the policy under consideration (see 30 Words and Phrases, perm, ed., 401). There is no other carrier or policy in this case. Plaintiff had no other policy or insurance available to him except the policy in question and the “other insurance” clause becomes inapplicable, rendering it unnecessary to determine if any repugnancy exists therein. Defendant here chose to issue coverage on two separate automobiles and to accept a premium for each. Under these facts, clauses designed to prevent the paying of a disproportionate amount of a loss which is properly shared with another insurance company should not be distorted to reduce whatever amount is otherwise due the insured under his policy.
We have reviewed the decisions cited by defendant. Nearly all are distinguishable upon the facts, as where coverage in other carriers existed. Defendant does point to a contrary result reached in Ringenberger v. General Accident F. & L. Assur. Corp., (Fla. App. 1968 ) 214 So. 2d 376, where coverage in the same policy was in effect for two automobiles. The insured while in a nonowned automobile was involved in a collision with an uninsured motorist. His. recovery was limited to $10,000 rather than the $20,000 claimed under both coverages. In addition to our conclusion that an “other insurance” clause is inapplicable when only one policy is under consideration, we note other factors in the Ringenberger case which detract from its persuasiveness here. First, the premium charged for the second automobile was less than that for the first vehicle; second, testimony by an expert witness was accepted on behalf of the insurer that addition of the second automobile to the policy did not increase the exposure to the insurer from collisions while-the insured was occupying a nonowned automobile; and finally, the opinion cited as authoritative the case of Hilton v. Citizens Insurance Company of New Jersey, (Fla. App. 1967) 201 So. 2d 904. In the Hilton case the policy specifically provided that regardless of the number of automobiles to which the policy applies, the limit for uninsured motorist coverage stated in the declarations as applicable to each accident is the total limit of the insurer’s liability for all damages sustained by one or more persons as the result of any one accident.
Cases in accord with the view we have taken, where there has been either more than one automobile covered in the same policy or more than one policy with the same carrier covering different automobiles, include Robey v. Safeco Insurance Company of America, (W. D. Ark. 1967 ) 270 F. Supp. 473, affirmed in part in Safeco Insurance Company of America v. Robey, (8 CA, 1968) 399 F. 2d 330; Deterding v. State Farm Mut. Auto. Ins. Co., 78 Ill. App. 2d 29, 222 N. E. 2d 523 and Bryant v. State Farm Mutual, 205 Va. 897, 140 S. E. 2d 817. In these cases multiple recovery was allowed upon each coverage despite the “other insurance” clause. We think the-rationale of these particular cases is not affected by their having; arisen in states having a limited form of mandatory uninsured motorist coverage; for example, in the first cited case the policies-aggregated more than the minimum statutory requirements and the-court pointed out that the Arkansas statute merely prescribed a minimum amount of coverage, leaving the insurer free to issue as-many policies as it may be able to sell.
We hold where two automobiles are insured for uninsured' motorist coverage in the same policy and the named insured while-riding a motorcycle suffers bodily injury from an uninsured mo torist, the coverages on the two automobiles do not constitute, as to each other, other similar insurance available to the insured within the meaning of an “other insurance” clause providing for limitation of liability and pro rata sharing.
Further exploring the policy we find it defines two separate classes of persons as being “insured” under it: First, the named insured (and any relative); and second, any other person while occupying an insured automobile. To be insured, the latter must actually be occupants of an insured vehicle. Their coverage is tied to and limited to actual occupancy of a particular automobile. This is not true of the named insured. His coverage, with one important exception, is not tied to or limited by occupancy of an automobile. In 11 Am. Jur. Trials, Uninsured Motorist Claims, § 8, p. 91, we find this discussion of the standard form of this type coverage:
“Indeed, he [the named insured] need not be an occupant of a motor vehicle. There is no ‘occupancy’ requirement for such a person, only a necessity that bodily injury be produced by an uninsured automobile. The person may be injured while a pedestrian or engaged in any other nonvehicular activity.”
Thus we see that the policy provides the named insured with two kinds of coverage: While he is in his insured automobile, and wherever else he may happen to be when he suffers bodily injury due to an uninsured motorist. This latter constitutes a broad reservoir of coverage. The only exception in it arises from the specific exclusionary clause which provides the policy does not apply to bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by the named insured (or a relative) or through being struck by such an automobile. Obviously this exclusion is designed to prevent two or more automobiles being covered for the price of one, inasmuch as ownership of an automobile is the foundation of the entire policy, and to induce persons owning more than one automobile to secure coverage for all. In effect, then, as to the named insured, upon his payment of a single premium for one automobile, the policy provides vast coverage — with the single important exception. If, in paying one premium for a single automobile, coverage is purchased while occupying the insured automobile along with the coverage not tied to that automobile, the question might well be asked, What coverage is intended by payment of an equal premium for a second auto mobile? Does it include the broad reservoir of coverage secured under the first premium for the first automobile, and if not, why?
This court has held in numerous decisions that an ambiguous insurance policy will be construed strictly against the insurer. Where an insurer prepares its own contracts, it has a duty to make the meaning clear, and if it fails to do so, the insurer and not the insured must suffer. If the terms of a policy of insurance are ambiguous or obscure or susceptible of more than one construction, the construction most favorable to the insured must prevail. Courts should not be astute to evade the meaning of words manifestly intended by the parties. The language of a policy of insurance must, if possible, be construed in such manner as to give effect to the intention of the parties at the time it was made as expressed therein. In the application of this rule the test is not what the insurer intended the words of the policy to mean but what a reasonable person in the position of the insured would have understood them to mean (Leiker v. State Farm Mutual Automobile Ins. Co., 193 Kan. 630, 633, 396 P. 2d 264; see, also, Buchanan v. Employers Mutual Liability Ins. Co., 201 Kan. 666, 443 P. 2d 681). Unclear and obscure clauses in a policy of insurance should not be allowed to defeat the coverage reasonably to be expected by the insured.
In Lavin v. State Farm Mutual Automobile Ins. Co., 193 Kan. 22, 391 P. 2d 992, an insured owned three automobiles upon which the insurer issued three separate policies containing a provision for payment of medical expenses in the amount of $500. Premiums were paid for such coverage. The son of the named insured was injured while occupying one of the insured vehicles. His medical expenses exceeded $1500. The insurer tendered only $500 under the one policy covering the vehicle occupied by the son when he was injured. The son sued to recover on the other two. This court applied the foregoing rules of construction and permitted recovery on all three policies despite certain exclusionary clauses therein. In the course of the opinion it was stated that insurance providing for medical payment is “closely akin to a personal accident policy.” (p. 26.) We think the decision has some analogy to the case at bar where the indemnity provided is for injury to the person.
It must be borne in mind the purpose of uninsured motorist insurance is to provide compensation for personal injury to the innocent victim of the uninsured motorist. As to the named insured the coverage is a contract benefit for which he has paid. Here the damage to the insured has been determined and he now seeks indemnity for it. He is not seeking any windfall as a result of his injury but he is seeking full indemnity based on payment of two separate premiums. Applying traditional rules of construction we think he is entitled to that coverage. Of the two constructions which could be placed on the limitation of coverage in this particular policy under these facts, this conclusion effectuates insurance as to each automobile mentioned in the policy and permits recovery rather than forfeiture of a benefit for which the insured has paid. Defendant seeks to avoid fully indemnifying its insured on what we believe to be an overly strict construction of its policy in its favor. If it were intended to restrict the limit of liability to $10,000 in one policy where more than one automobile is covered, this could have been very easily accomplished in plain, unmistakable language, as was done in Hilton. We are accustomed to purchasing insurance which follows the person in units or multiples, with the premium fixed by the insurer accordingly (the premium, of course, is subject to state regulation). When we pay a double premium we expect double coverage. This is certainly not unreasonable but, to the contrary, is in accord with general principles of indemnity that amounts of premiums are based on amounts of liability. Defendant argues that what plaintiff is seeking amounts to pyramiding coverage but nothing is said about pyramiding the premiums which effectuate the coverages. We would not be understood as implying that an injured insured can pyramid separate coverages in the same policy so as to recover more than his actual loss (see Rosson v. Allied Mutual Ins. Co., No. 45,384, 203 Kan. 795, 457 P. 2d 42).
We hold that plaintiff is entitled to a total of $20,000 coverage, and the trial court erred in limiting recovery as it did.
In view of the conclusion just reached the further question remains as to plaintiff’s entitlement to attorney fees under K. S. A. 1968 Supp. 40-256 which provides for payment of attorney fees by a losing insurer in a suit brought against it when it appears the insurer has refused without just cause or excuse to pay the full amount of the loss.
Whether attorney fees are to be allowed must depend on the facts and circumstances of each particular case (Parker v. Continental Casualty Co., 191 Kan. 674, 383 P. 2d 937). This action is one for declaratory judgment. By agreement, after submission of certain issues to arbitration, the extent of coverage was submitted to court action. A good faith legal controversy as to policy interpretation existed, being one of first impression in this jurisdiction. The policy in question might properly be denominated a standard form used in the insurance industry but uniform rules as to its interpretation have never been established. We think the defendant has not been unreasonable in its position, though mistaken, and we cannot say it refused without just cause or excuse to pay the full amount of the loss as now determined. Hence we hold attorney fees are not allowable here.
The judgment appealed from is reversed with directions to enter judgment according to the views expressed herein. approved by the court.
Price, C. J., and Fromme, J., dissent. | [
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