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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from a judgment annulling a marriage, settling property rights, and allowing attorney fees.
The salient facts, which are not in dispute, will be summarized.
The defendant, Noema Burnett, was divorced from her former husband in Sedgwick County, Kansas, October 14, 1958. On October 26, 1958, the plaintiff, William Burke Burnett, and defendant went through a marriage ceremony in Miami, Oklahoma. Both were residents, and have remained residents, of the State of Kansas. The parties lived together at Wichita until December 1, 1958, when they moved to Colorado. They returned to Kansas April 1, 1959, where they lived on the farm of plaintiff’s father. Sometime thereafter the father died and plaintiff inherited a one-half interest in the farm which consisted of some 3,000 acres. The parties continued to live together on the farm until December, 1961.
On October 7, 1961, the plaintiff filed his petition for divorce. At this point the record is somewhat confusing. It appears the defendant was supposed to leave the farm on December 1, 1961, but instead the plaintiff left sometime in December. The parties lived together for two days, December 9 and 10, 1961, at a motel in Dodge City. The plaintiff could not remember whether he stayed on the farm with defendant thereafter.
On December 30, 1961, defendant filed her answer to the petition alleging condonment. Later, and on February 21, 1962, plaintiff filed his first amended petition in which he alleged that defendant was incapable of entering into the Oklahoma marriage because her Kansas divorce had not become final.
Thereafter, on a date not disclosed by the record, defendant filed her answer to the amended petition in which she alleged:
“Further answering the Defendant states that since the filing of this action she and the plaintiff have continued to live together as husband and wife except for a short period during the month of December, 1961, that they have continued to occupy the same home and same bed all said times; that they have made weekend trips together occupying the same bed, and that if the Defendant is guilty of the charges of extreme cruelty and gross neglect of duty, and this she specifically denies, then the Plaintiff has condoned the same and has no grounds for divorce.”
On February 9, 1962, defendant filed an amended answer in which she prayed for a divorce on the grounds of extreme cruelty and gross neglect of duty. On March 20, 1962, defendant filed a cross-petition in which she prayed for a divorce, alimony and a division of property. Plaintiff replied with a general denial. The above quoted allegation was carried in all of defendant’s pleadings.
The case proceeded to trial and at the conclusion thereof a colloquy occurred between court and counsel in which the court indicated that it would determine the issue on the invalidity of the Oklahoma marriage. The defendant then requested permission to amend her cross-petition to include an allegation of common-law marriage. Thereupon the court stated:
“I think since we have gone this far with both parties relying on the marriage ceremony contract, I’ll overrule the motion to amend at this time.”
Subsequently the trial court rendered judgment annulling the Oklahoma marriage and adjusted the property rights of the parties as on an annulment decree. Thereupon defendant perfected the instant appeal.
In this court tire appellant specifies as error, among other matters: (1) The judgment of the trial court that the Oklahoma marriage was void; (2) the refusal of the trial court to decree a valid common-law marriage of the parties, and (3) the refusal of the trial court to allow defendant to amend her pleadings so as to allege a common-law marriage, the facts constituting such marriage having been pleaded and proved.
We pass the first question which would require a review and construction of the marriage and divorce laws of Oklahoma.
The marriage status of the parties can be determined under the well-established law of this state. Appellant alleged in her cross-petition:
“That Plaintiff herein and Defendant herein were married at Miami, Oklahoma upon the 26th day of October, 1958, and have lived together as husband and wife since that time . . .”
The foregoing allegation, although not concluding that a common-law marriage existed, did plead the facts which constitute a common-law marriage.
The fact that the parties lived together as man and wife long after the six months’ waiting period following appellant’s Kansas divorce, and the divorce had become final, is not disputed.
The appellee testified:
“Q. Now you say you haven’t lived with the defendant as husband and wife since when? A. Oh, as husband and wife I’d say September [1961].”
We need not detail all of the evidence which established the common-law marital status. It was admitted. Neither need we review the well-established rules governing the facts and circumstances which establish a common-law marriage. Those interested in the elementary principles are referred to Renfrow v. Renfrow, 60 Kan. 277, 56 Pac. 534.
This court has held in numerous cases that where the parties continue to live together as husband and wife after the marriage restrictions are removed they become husband and wife in fact under the common law.
In Smith v. Smith, 161 Kan. 1, 165 P. 2d 593, we held:
“Common-law marriages are recognized in this state, even though the circumstances are such as to authorize the prosecution of the parties under G. S. 1935, 23-118.
“The fact that the parties entered into a common-law marriage does not prevent one of them from later maintaining an action for divorce, if facts exist which are recognized by our statutes (G. S. 1943 Supp. 60-1501) as grounds for divorce.” (Syl. f¶ 2, 3.)
This court announced the applicable rule in Knollenberg v. Meyer, 151 Kan. 768, 100 P. 2d 746, where it is held and said:
“In an action to partition real estate, the record is examined, and it appears that A and B entered into a prenuptial contract within a few days after A had been divorced in Kansas; that within less than six months from the date of the divorce decree A and B were married in Oklahoma, and returned to Kansas immediately, where they lived together as man and wife for several years. Held, that the prenuptial contract was valid and both parties were bound by it.” (Syl.)
And in the opinion said:
“In this case we are all agreed that even if the marriage in Oklahoma be disregarded, this couple became man and wife in the eyes of the law six months after the divorce decree was entered. (See Freeman v. Fowler Packing Co., 135 Kan. 378, 11 P. 2d 276.) Thus, whether we look to the ceremony in Oklahoma or the relationship that came into being on account of the parties living together as man and wife in Kansas, we find nothing that would make the prenuptial contract void.” (p. 778.)
In Freeman v. Fowler Packing Co., 135 Kan. 378, 11 P. 2d 276, we said:
“Thelma Wyatt was divorced from her husband on March 22, 1929. Two weeks later, on April 5, she married Benson Freeman, the workman. The statute reads:
“ ‘It shall be unlawful for either party to such divorce suit to marry any other person within six months from the date of the decree of divorcement; . . . and every person marrying contrary to the provisions of this section shall be deemed guilty of bigamy, and such marriage be absolutely void.’ (R. S. 60-1512.)
"The result is, the formal marriage of Thelma and Benson Freeman was void. They continued, however, to live together as husband and wife after expiration of the six months’ period, and were so living together at the time of his death, which occurred on September 13, 1930. This being true, after the time elapsed within which Thelma was forbidden to marry, she was Benson’s common-law wife (Renfrow v. Renfrow, 60 Kan. 277, 56 Pac. 534), and at his death she became his widow.” pp. 379, 380.)
In a proceeding to annul a marriage, the trial court has the responsibility of seeing that the marital status is not disturbed unless clearly sanctioned by law. The marriage relationship is a matter of public concern. Proceedings to dissolve marriages are not favored under the law. Annulment proceedings are equitable in nature and equitable principles should prevail. In an annulment proceeding it is the present marital statuts that is to be considered, not whether a prior marriage between the parties was void.
When appellant’s pleadings alleged facts constituting a common-law marriage, and the undisputed evidence supported the allegations, the trial court was without authority to annul the Oklahoma marriage and dispose of the property of the parties as in an annulment proceeding. The decree annulling the Oklahoma marriage accomplished nothing. The parties were still husband and wife under the common law.
An annulled marriage strips the parties of all legal rights which follow the dissolution of a valid marriage. The woman loses all right to alimony and is deprived of all interest in the man’s property. (Johnson County National Bank & Trust Co. v. Bach, 189 Kan. 291, 369 P. 2d 231.)
What has been heretofore stated and held requires a reversal of the judgment with directions to the trial court to decree a valid marriage of the parties under the common law and to proceed with the determination of their marital rights under the law pertaining to divorce and alimony, and it is so ordered.
In conclusion it should be pointed out the court has not overlooked appellant’s request that her attorneys be awarded a reasonable fee for legal services performed on her behalf in the preparation and presentation of the instant appeal. Our ruling on such request has been deferred for further consideration and will be made by separate order. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action filed in the district court of Sedgwick County, Kansas, seeking to enjoin the enforcement of Chapter 220, Laws of 1963, commonly known as the “Sunday Closing Law.” The plaintiffs own and operate grocery stores in Sedgwick County, and the defendants are the Attorney General of Kansas and the county attorney of Sedgwick County.
The plaintiffs are joined in a common action seeking to have the so-called “Sunday Closing Law” declared unconstitutional and invalid. Upon a trial of the issues to the district court on July 2, 1963, and on July 5, 1963, the court entered its order holding the Act unconstitutional in that it violated certain sections of the Kansas Constitution and the Fourteenth Amendment to the Constitution of the United States. It thereupon enjoined the defendants from enforcing the law, whereupon appeal was duly perfected to this court.
The question on appellate review is whether the “Sunday Closing Law” is constitutional.
The appellees (plaintiffs) herein are all individual grocery store owners and operators engaged in the selling at retail of many items prohibited by Chapter 220, Laws of 1963, hereafter referred to as the “Act,” in addition to many items not prohibited. Most of the appellees’ sales consist of items specifically prohibited by the Act. None of the appellees is exempt by the Act from sales after 10:00 a. m. on Sundays, either because of size, number of employees or premises of business. There are, however, other grocery store operators and businesses in direct competition with these appellees in Wichita, Sedgwick County, Kansas, who are exempt under the Act.
The parties have stipulated to practically all of the facts and issues involved. The significant stipulations relate primarily to the effect of the Act upon the Sunday sales activities of the appellees. It is unnecessary to relate these stipulations in detail except to note that they do serve to squarely present the issues hereafter discussed on appellate review.
The stipulations foreclose any doubt that a significant portion of the business of the appellees is had on Sunday, and if the Act were enforced, the appellees would sustain a permanent loss of business to their competitors who are exempt by the Act.
Chapter 220, Laws of 1963, was considered by the legislature as Senate Bill No. 137. As received and certified by the Secretary of State on April 17,1963, it reads:
“Senate Bill No. 137
An Act prohibiting the sale or offering for sale on the first day of the week, commonly called Sunday, or the compelling, forcing or obligating of employees to sell certain named items on said day; providing certain exemptions; prescribing penalties for violations; and repealing sections 21-952, 21-953, 21-955 and 21-956 of the General Statutes of 1949.
“Be it enacted by the Legislature of the State of Kansas:
“Section 1. Any person who, on the first day of the week, commonly called Sunday, sells or offers for sale or shall compel, force or oblige his employees to sell any clothing; foot wear; headwear; household equipment; home, business or office furniture and furnishings; household, business or office appliances; hardware, tools, paints and wallpaper; lumber, plumbing and building materials; jewelry; silverware; watches; clocks; luggage; musical instruments; radios and television sets, record players and recording devices; motor vehicles; toilet preparations, toilet articles and cosmetics; cameras and projectors; yard goods, trimmings; meats and all other food prepared or intended for human consumption, except as otherwise provided in section 4 of this act, shall be deemed guilty of a misdemeanor and upon conviction shall be punished as provided in section 2 of this act. Each separate sale shall constitute a separate offense. For the purpose of this act, the word ‘person shall be construed to include a person, firm, association, partnership or corporation.
“Sec. 2. Upon conviction for the first offense under this act, the punishment shall be by fine of not more than one hundred dollars ($100). If it is shown upon the trial of a case involving a violation of this act that defendant has been once before convicted of an offense under this act, he shall on his second conviction and on all subsequent convictions be punished by imprisonment in jail not exceeding thirty (30) days or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment.
“Sec. 3. As to articles of food, serving of food or meals and the sale of farm produce: (a) Articles of food may be sold, served, supplied and delivered at any time before 10:00 o’clock in the morning on the first day of the week, commonly called Sunday; (b) this act shall not apply to any person who sells in only one place of business in Kansas, meats and other food prepared or intended for human consumption when such single place of business regularly employs not more than three (3) people and occupies less than five thousand (5,000) square feet; (c) food or meals prepared on the premises to be eaten on or off the premises where sold may be sold at any time of the day on the first day of the week, commonly called Sunday; (d) soft drinks, candy, milk and frozen dairy products may be sold at any time on the first day of the week, commonly called Sunday; (e) caterers may serve meals to their patrons at any time of the day on the first day of the week, commonly called Sunday; and (f) farm produce may be sold by the producer on the farm where it is produced at any time.
“Sec. 4. Occasional sales of any item named herein by a person not regularly engaged in the business of selling such item, sales of such items by manufacturers or wholesalers to retailers, and sales of items customarily sold as souvenirs, novelties, or handicraft articles, shall be exempt from the provisions of this act.
“Sec. 5. Nothing in this act shall be construed to prohibit sales on Sunday of articles for the relief of suffering, the preservation of health, safety, or the protection of persons or property, when occasioned by the happening of some unexpected event which could not have been foreseen or guarded against by reasonable diligence, nor shall this act be construed as prohibiting grain elevators from remaining open seven (7) days a week during any grain harvest period for the purpose of buying or selling of grain, nor shall this act be construed to prohibit sales by any business selling merchandise pertaining to the repair and maintenance of farm equipment.
“Sec. 6. If any clause, sentence, paragraph, section, or part of this act shall for any reason be declared unconstitutional by any court of competent jurisdiction it shall not affect the validity or constitutionality of any remaining sentence, clause, paragraph, section, or part of this act.
“Sec. 7. Sections 21-952, 21-953, 21-955 and 21-956 of the General Statutes of 1949 are hereby repealed.
“Sec. 8. This act shall take effect and be in force from and after July 1, 1963, and its publication in the statute book.” (Emphasis added.)
For reasons hereafter stated we think the trial court was correct in holding the Act unconstitutional.
The appellees challenge the validity of the Act on the grounds: (1) That its title its defective; (2) that its provisions are vague, uncertain and ambiguous in defining the acts to be prohibited; (3) that the Act constitutes an unreasonable and arbitrary exercise of the police powers of the state because of the arbitrary, unreasonable and pointless classification of persons and businesses by its provisions, and because it deprives these appellees of their property and property rights without due process of law; and (4) that it violates the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States.
While the appellants take issue with the appellees on each of the foregoing points, we think it necessary to consider the controlling question only.
The original form of the bill introduced in the Kansas Senate provided in Section 3 that the purpose of the Act was to promote the health, recreation and welfare of the people of this state.
Before the bill was finally enacted this section (the purpose clause) of the Act was completely eliminated along with many of the provisions designed to accomplish such purpose. Among the provisions of the Act added by amendment were the portions above italicized.
It is apparent that sometime after introduction of Senate Bill No. 137 before the legislature, the motives, purposes and intendments of what is now called the “Sunday Closing Law” had changed considerably.
The emphasized portion of Section 3 above would suggest that the statute under consideration is an Act eliminating the competition on Sunday of grocery store owners having more than one place of business, employing more than three people, or occupying more than 5,000 square feet. Of this clause it may be said the Act makes an arbitrary and unreasonable classification of persons and businesses by its provisions.
Section 1 of the Bill of Rights of the Kansas Constitution provides: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”
Section 2 of the Bill of Rights of the Kansas Constitution provides in part: “All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit. . . .”
Article 2, Section 17 of the Kansas Constitution provides:
“All laws of a general nature shall have a uniform operation throughout the state; and in all cases where a general law can be made applicable, no special law shall be enacted; and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of the state.
It must be conceded that uniform Sunday Closing Laws are within the police power of the state of Kansas, as well as any other state. However, the concession goes only to a Sunday Closing Law of uniform application that has as its admitted or ostensible purpose the promotion of the general welfare by the prohibition of certain conduct on Sunday. Here, however, the court is not strictly confronted with a Sunday Closing Law.
In the case of State, ex rel., v. Consumers Warehouse Market [1959] 185 Kan. 363, 343 P. 2d 234, this court struck down the so-called “Unfair Practices Act” by a firm holding. The court clearly announced the following rule in Syllabus ¶ 1:
“In the exercise of its powers of regulation, a state possesses broad discretion in the matter of classification, but discrimination in a regulatory statute must be based on differences and distinctions that have a reasonable and substantial relation to the purposes of the statute and the subject matter thereof.”
In 1960, one year later, the court in Gilbert v. Mathews, 186 Kan. 672, 352 P. 2d 58, struck down the “New Goods Public Auction Law,” stating:
“While the police power is wide in its scope and gives the legislature broad power to enact laws ... it cannot under the guise of the police power enact unequal, unreasonable and oppressive legislation or that which is in violation of the fundamental law. (Little v. Smith, 124 Kan. 237, 257 Pac. 959.)
“. . . that regulations must have reference in fact to the welfare of society and must be fairly designed to protect the public against the evils which might otherwise occur . . (p. 677.)
Can it be said the general welfare of the public has been enhanced or promoted to any degree or in any way by the Act, or can it be said that any evil has been eliminated or will be eliminated by the Act?
The effect of this Act on the general public would be to force customers to cease doing their business at certain stores, and to shop at other places of business which are favored under the Act. Insofar as die appellees are concerned, the general public can buy anything that it could buy before the Act, except that the purchasers would have to look for one of the favored “persons” under the statute to purchase such items as the appellees are prohibited from selling. Instead of ehminating any evil the statute will create or commit evil — that is, it will eliminate the competition presently afforded by the appellees and others similarly situated.
In addition to the italicized provisions in Section 3, the italicized provisions in Section 5 of the Act, as above quoted, are ambiguous.
What did the legislature intend by such expression? Different interpretations are immediately apparent: (1) Does this provision mean that any business having for sale merchandise pertaining to the repair and maintenance of farm equipment can stay open on Sunday for all purposes and all types of sales? (2) Does the provision authorize any business, irrespective of inventory, to sell only merchandise pertaining to the repair and maintenance of farm equipment? If so, who determines what items or articles may pertain to the repair and maintenance of farm equipment? (3) Does the provision authorize a business selling only merchandise pertaining to the repair and maintenance of farm equipment to remain open on Sunday?
It was stipulated the appellees regularly sell merchandise pertaining to the repair and maintenance of farm equipment, including miscellaneous farm tools, such as pliers, hammers, wrenches, screw drivers, wire, rope, fuel cans, nails, screws and oil.
Sales forbidden by the Act are made a criminal offense. As to a criminal statute, which forbids the doing of an act in terms so vague that men of common intelligence must guess at its meaning and differ as to its application, see State v. Hill, 189 Kan. 403, 369 P. 2d 365, 91 A. L. R. 2d 750.
In 1933 the court, in Capital Gas & Electric Co. v. Boynton, 137 Kan. 717, 22 P. 2d 958, declared unconstitutional Chapter 238 of the Laws of 1931. That particular act was designed for the purpose of prohibiting utility companies from engaging in the retail sales of various appliances. The court, after carefully analyzing the act, found that no feature of public welfare was actually involved, and struck down the statute on the ground that it was strictly class legislation, without any reasonable relation to the welfare of the public. In that act only certain utility companies were deprived of the privilege of selling appliances. Other individuals, firms and corporations were permitted to engage in merchandizing those same items. To the court this constituted a deprivation of the equal protection of the law.
The conclusion is inescapable that the Act in question is, as to the appellees and others similarly situated, arbitrary, unreasonable and oppressive legislation.
A careful analysis of the Act before the court, construed in the light of the applicable portion of Article 2, Section 17 of the Kansas Constitution, heretofore quoted, reveals that at least two groups of merchants are specifically exempt from the provisions of the Act; notwithstanding the fact that they are engaged in selling exactly the same items as other persons to whom the Act applies. They are: (1) Retailers of grocery products when such retailer has only one place of business, employs not more than three people, and occupies less than 5,000 square feet; and (2) any business selling merchandise pertaining to the repair and maintenance of farm equipment (under at least one construction of the Act).
Our decision on the point under consideration is controlled by State, ex rel., v. Consumers Warehouse Market, supra. The court there said:
“Does the Act — which we think must be conceded to be a law of a ‘general nature’ — have a ‘uniform operation throughout the state’ as required by Sec. 17 of Art. 2 of our own constitution?
“Much of what has been said may well apply to this question. The Act defines a class — all retailers and wholesalers of tangible personal property within the state — and purports to regulate all falling within this broad classification. It then, by the proviso in question, arbitrarily exempts ‘grain and feed dealers.’ The Act, therefore, does not operate uniformly on all members of the broad classification so created — that is, its operation is not uniform as to the class defined — and therefore may not be said to have a uniform operation throughout the state. . . .” (p. 371.)
Here it must be conceded tbe Act was designed to be a law of a “general nature,” but does not have uniform operation throughout the state as required by Article 2, Section 17 of the Kansas Constitution. The Act in Section 1 prohibits persons from selling items commonly sold in a grocery store and purports to regulate all falling within this broad classification. It then, by the proviso in question in Section 3, arbitrarily exempts the so-called “Mom and Pop” store. The Act, therefore, does not operate uniformly on all members of the broad classification so created — that is, its operation is not uniform as to the class defined — and therefore may not be said to have a uniform operation throughout the state.
Where an Act is attacked as being violative of Article 2, Section 17 of the Kansas Constitution, the rules of statutory construction with the accompanying presumptions of validity have no application. The third clause of Article 2, Section 17 provides: “. . . and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of the state. . . .”
It is well settled that whether the Act in question is repugnant to the first and second clauses of Article 2, Section 17 shall be determined by the courts.
In a recent decision on this question, Water District No. 1 v. Robb, 182 Kan. 2, 318 P. 2d 387, this court said:
“Prior to the 1906 amendment to the Constitution this court adhered generally to the rule that it was for the legislature to determine whether a special law was justified. The evils inherent in the system as it existed prior to the amendment of the Constitution were discussed in Anderson v. Cloud County, 77 Kan. 721, 95 Pac. 583. After the Constitution was amended the legislature no longer had the power to finally determine either that a proposed law would have uniform operation throughout the state or that a local condition exists which requires a special law, and it became the duty of the courts to determine the constitutionality of an act without reference to anything the legislature had declared, either in the act in question or in other acts.” (p. 11.) (Emphasis added.)
In State, ex rel., v. Hodgson, 183 Kan. 272, 326 P. 2d 752, it was said:
“The effect of the amendment of 1906, with respect to the second clause of the section, was to transfer to the courts the ‘discretion’ theretofore vested in the legislature of the relative propriety of whether a general law could be made applicable, i. e., ‘was more expedient,’ and to make the question a judicial one, without an express criterion as to ‘where a general law can be made applicable.’ . . .” (p.277.)
In the Hodgson case this court reviewed the earlier decisions and set forth the guides resulting from such review. They are:
“. . . (1) where the validity of an act is challenged, the rule of statutory construction which makes it the duty of the courts to uphold the law, if it is possible to do so, has no application however much that principal may apply to objections falling under other provisions of the constitution . . .; (2) that consideration be given the subject of the act and its operation and effect, without regard to any legislative assertion thereon . . .; (3) courts must determine the question by judicial notice of facts and conditions lying within the common public knowledge, and parol evidence is not admissible . . .; [No. 4 omitted] (5) where the object in view can be accomplished under a general law without ‘public injury,’ the legislature is not at liberty to enact a special law. . . .
(6) although not conclusive in itself, the existence of a general law on the subject to which a special act is directed serves ‘as an apt illustration of the adaptability of a general law on the subject, and as an argument against the necessity for a special law.’ . . .” (p.279.)
Does the fact that the two provisions of the Act in question are held to be bad invalidate the entire Act, or are such provisions severable under Section 6 of the Act, thus leaving the remainder of the Act in full force and effect?
The rule is stated very clearly in the early case of Central Branch U. P. R. Co. v. Atchison, T. & S. F. R. Co., 28 Kan. 453, in which it was held:
‘‘While it is undoubtedly true that a statute may be constitutional in one part, and unconstitutional in another, yet this rule obtains only where the two parts are separate and independent; and where they are so related that the latter is a condition of, a compensation for, or an inducement to, the former, or where it is obvious that the legislature, having respect to opposing rights and interests, would not have enacted one but for the other, then the unconstitutionality of the latter avoids the entire statue.” (Syl. ¶[ 1.)
In State v. Smiley, 65 Kan. 240, 69 Pac. 199, 67 L. R. A. 903, it was said:
“. . . The general doctrine is that only the invalid parts of a statute are without legal efficacy. This is qualified by the further rule that if the void and valid parts of the statute are so connected with each other in the general scheme of the act that they cannot be separated without violence to the evident intent of the legislature, the whole must fall. These rules are of every-day enforcement in the courts. . . .” (p. 247.)
Tested by the foregoing statements of the rule, the invalid portions of the Act are not separate and independent provisions of the Act, but rather are such an integral and inseparable part of the whole scheme and purpose of the law that they may not be severed and thus leave the remainder in full force and effect. In other words, to eliminate the objectionable clauses would change the scope of the Act and make it applicable to all businesses alike, whereas the legislature expressly declared certain businesses were not to be included. (State, ex rel., v. Consumers Warehouse Market, supra.)
In view of our holding that the so-called “Sunday Closing Law” is invalid and unconstitutional as being repugnant to the provisions of Article 2, Section 17 of the Kansas Constitution, we find it unnecessary to determine other constitutional questions raised by the parties.
The judgment of the lower court is affirmed.
Jackson and Fontron, JJ., not participating. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from an order of the district court of Leavenworth County denying petitioner — who is presently serving an unexpired sentence in the penitentiary for grand larceny —a writ of habeas corpus. The facts of record required to dispose of the decisive issues presented by the appeal will be stated briefly.
On March 27, 1961, petitioner was brought before the district court of Cherokee County for arraignment on an information charging him, under the provisions of G. S. 1959 Supp., 21-533, with an offense of grand larceny which, under the statute (G. S. 1949, 21-534), was punishable by confinement at hard labor not exceeding five years. Thereupon the following colloquy took place between the court and the petitioner:
“The Court: Are you financially able to hire an attorney?
“The Defendant: No.
“The Court: Under our law you have the right to have an attorney appointed for you by the court to serve you without pay if you are financially unable to hire an attorney. Do you understand that?
“The Defendant: Yes.
“The Court: Do you desire to have an attorney appointed for you?
“The Defendant: No.
“The Court: And likewise, are your parents here in court?
“The Defendant: Yes, sir.
“The Court: And have you talked to them about this case?
“The Defendant: Yes.
“The Court: (pause) I have here a paper which states, T Richard White, about to be arraigned upon an information charging the offense of Grand Larceny hereby certify that I have been fully advised by the Court of my right to have counsel represent me in this case: that the court has offered me services of an attorney and has offered to appoint an attorney for me in this case; that I do not desire an attorney and do not want an attorney appointed for me and desire to enter my plea without having an attorney to represent me. Signed in open court at Columbus, Kansas this 27fh day of March 1961,’ and if that is your wish — .”
Further facts disclosing what happened in petitioner s criminal case in the district court of Cherokee County can best be demonstrated by reference to certain instruments on file in that action, copies of which appear of record in the case at bar. They are: (1) An order of the trial court containing the following recitals:
“Now on this 27th day of March, 1961, same being a regular judicial day of the January, 1961, term of the above court, this cause comes on for hearing upon arraignment, and the court being fully advised in the premises finds that said defendant, Richard White, has stated in writing in open court that he does not want an attorney appointed to represent him, and has stated that he desires to enter his plea herein without having an attorney appointed to represent him, and the court further finds that it will not be to his advantage to have an attorney appointed for him.”
And (2) the journal entry of judgment which reads:
“Now on this 27th day of March, 1961, the above-cause comes on for hearing, the State being present by the County Attorney, Jim Shaw, and the defendant, Richard White, being present in person but without an attorney; defendant’s right to counsel is explained; defendant states orally and in writing that he does not desire the services of an attorney and the Court finds that it will not be to defendant’s advantage to have an attorney appointed for him; whereupon defendant is arraigned; the information filed herein is read to defendant and defendant is advised of the penalty fixed by law; defendant pleads guilty to the offense of grand larceny (G. S., 1959 Supp., 21-533) as charged; defendant is asked if he has any legal reason why he should not he sentenced upon his plea of guilty, and defendant states that he has none and none appears;
“It Is Therefore by the Court Ordered and Adjudged That the defendant, Richard White, be and he is hereby sentenced to confinement and hard labor at the Kansas State Penitentiary at Lansing, Kansas, until released as provided by law (G. S. 1949, 21-534) and he is further ordered to pay the costs of this prosecution; whereupon defendant is remanded to the custody of the Sheriff of Cherokee County, Kansas, to carry out the judgment and sentence of the Court.”
Following his incarceration in the penitentiary, under the above mentioned judgment and sentence, petitioner commenced the proceeding giving rise to this appeal by filing a petition in the district court o£ Leavenworth County wherein, limited solely to the validity of such judgment and sentence, he charged in substance that his waiver of the right to counsel in the Cherokee County case was ineffective and invalid in that the court failed to advise him of his statutory right to the appointment of counsel; and that his plea of guilty to the crime, charged in the information in such case, was brought about by, and resulted from, promises of leniency, threats concerning the imposition of a sentence under the State Habitual Criminal Act, and threats concerning the prosecution of another, made by the county attorney who was in charge of the prosecution. In his answer the respondent, warden, denied all of the related allegations of the petition and alleged that petitioner was confined in the penitentiary pursuant to the valid and unexpired judgment and sentence of the Cherokee County district court. Thereupon, after a hearing at which the facts and proceedings related earlier in this opinion were fully developed, the court determined all issues joined by the pleadings in favor of the respondent and denied the writ. This appeal followed.
The essence of the first, and we may add the primary, claim advanced by appellant in this appeal is that his Cherokee County sentence is invalid because of the court’s failure to comply with the provisions of G. S. 1959 Supp., 62-1304, now G. S. 1961 Supp., 62-1304, relating to waiver of counsel, which read:
“(a) [1] If any person about to be arraigned upon an indictment or information for any offense against the laws of this state be without counsel to conduct his defense, it shall be the duty of the court to inform him that he is entitled to counsel, and to give him an opportunity to employ counsel of his own choosing, if he states that he is able and willing to do so. [2] If he does ask to consult counsel of his own choosing, the court shall permit him to do so, if such counsel is within the territorial jurisdiction of the court. [3] If he is not able and willing to employ counsel, and does not ask to consult counsel of his own choosing, the court shall appoint counsel to represent him, unless he states in writing that he does not want counsel to represent him and the court shall find that the appointment of counsel over his objection will not be to his advantage. [4] A record of such proceeding shall be made by the court reporter, which shall be transcribed and reduced to writing by the reporter, who shall certify to the correctness of such transcript, and such transcript shall be filed and made a part of the files in the cause. [5] The substance of the proceedings provided for herein shall be entered of record in the journal and shall be incorporated in the journal entry of trial and judgment. . . .” (Numbers inserted.)
In approaching consideration of appellant’s first contention it can be stated at the outset, that the requirements of the heretofore quoted provisions of 62-1304, supra, have been discussed and analyzed thoroughly in our recent decisions of Ramsey v. Hand, 185 Kan. 350, 343 P. 2d 225, certiorari denied, 362 U. S. 970, 4 L. Ed. 2d 901, 80 S. Ct. 956, and Tafarella v. Hand, 185 Kan. 613, 347 P. 2d 356, certiorari denied, 363 U. S. 807, 4 L. Ed. 2d 1150, 80 S. Ct. 1243, under conditions, circumstances and issues so similar in nature that those cases must be regarded as controlling precedents, compelling a conclusion that the record here presented establishes full and complete compliance with the above quoted provisions of 62-1304, supra. This, we may add, is fully demonstrated by the factual statement set forth in the preliminary portions of this opinion which affirmatively discloses that appellant was advised of his right to counsel, that he orally and voluntarily waived his right to appointment of counsel; that he executed a written statement stating that he did not desire an attorney and did not want an attorney appointed for him; that the court by formal order found appointment of counsel over his objection would not be to his advantage; that a record of the proceedings was made, and that the substance thereof was incorporated in the journal entry — all as required by the statute. Therefore, based on Ramsey v. Hand, supra, and Tafarella v. Hand, supra, to which we adhere and all pertinent portions of which are hereby made a part of this opinion by reference, we hold that the claim now under consideration lacks merit and cannot be upheld.
For other decisions supporting the conclusion just announced see Hardman v. Hand, 190 Kan. 148, 373 P. 2d 178; Miller v. Hand, 187 Kan. 352, 356 P. 2d 837, certiorari denied, 366 U. S. 938, 6 L. Ed. 2d 849, 81 S. Ct. 1664, 190 Kan. 246, 372 P. 2d 993; Griffin v. Hand, 187 Kan. 350, 356 P. 2d 812, Downs v. Hudspeth, 162 Kan. 575, 581, 178 P. 2d 219; Kneisley v. Hudspeth, 161 Kan. 772, 776, 173 P. 2d 247.
In an obvious attempt to avoid the foregoing conclusion appellant contends that the official court reporter did not comply with the heretofore quoted provision of 62-1304, supra, hereinbefore identified by the inserted number [4]. As previously indicated we think the record discloses that the reporter did comply with that provision. Moreover, assuming arguendo that appellant’s position on this point has any merit, the record does not warrant a conclusion that failure to comply with requirements of number [4] affords a sound basis for holding his Cherokee County judgment and sentence invalid. We held to the contrary at pages 619 and 620 of the opinion in the Tafarella case. See, also, Goetz v. Hand, 185 Kan. 788, 347 P. 2d 349, certiorari denied, 362 U. S. 981, 4 L. Ed. 2d 1016, 80 S. Ct. 1068; Tibbett v. Hand, 185 Kan. 770, 347 P. 2d 353, certiorari denied, 363 U. S. 854, 4 L. Ed. 2d 1736, 80 S. Ct. 1634.
Appellant’s second and final claim is based upon the allegations of his petition to the effect that his plea of guilty to the offense charged in the information was brought about by, and resulted from, promises of leniency, threats concerning the imposition of a sentence under the State Habitual Criminal Act, and threats concerning the prosecution of another, made by the county attorney who was in charge of the prosecution. The short and simple answer to all claims made by him on this claim is that the record presented to us on appellate review of the involved judgment is wholly devoid of any evidence sustaining his position on the point now under consideration. Indeed, it may be stated that the record before us fails to disclose that he testified as a witness in his own behalf in support of the foregoing allegations.
This court has long been committed to the rule that the unsupported and uncorroborated statements of the petitioner in a habeas corpus proceeding do not sustain the burden of proof or justify the granting of his writ where — as here — the judgment rendered is regular on its face and entitled to a presumption of regularity and validity. See, e. g., Goetz v. Hand, supra; May v. Hoffman, 179 Kan. 149, 153, 293 P. 2d 265; Hartman v. Edmondson, 178 Kan. 164, 166, 283 P. 2d 397; and Kneisley v. Hudspeth, supra, and decisions there cited.
Numerous decisions of like import are cited in Hatcher’s Kansas Digest [Revised Edition], Habeas Corpus, § 35, and West’s Kansas Digest [Cumulative Annual Pocket Part], Plabeas Corpus, § 85.4(3).
What has been heretofore stated and held compels a conclusion the district court’s action in denying the writ was proper and must be approved.
The judgment is affirmed.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Valentine, J.:
On the 9 th of September 1874, defendant in error filed his petition in the district court of Morris county, against plaintiffs .in error and one F. M. Chase, alleging, that he had obtained a judgment against H. H. McCardell (one of the plaintiffs in error) for a certain sum, before a justice of the peace; that the justice before whom said judgment was obtained was legally qualified, etc.; that he (defendant in error) filed a transcript of said judgment in the office of the clerk of the district court, according to law, on the 30th of July 1874; that said judgment was wholly due and unpaid; that the debt upon which said judgment was obtained, was, upon the 20th of February 1874, in whole, or in part, an existing subsisting debt; that upon said 20th of February 1874, H. H. McCardell was the owner in fee simple of certain real estate (described in the petition,) and that said real estate was at that time of the value of $3,000; that at that time (20th February 1874,) H. H. McCardell was deeply indebted to sundry and divers persons, including the defendant in error, of which fact F. M. Chase and Matilda McCardell had full knowledge; and that said H. H. McCardell, F. M. Chase and Matilda McCardell, at said time (20th February 1874,) unlawfully and fraudulently' conspired together to cheat, defraud, hinder and delay the creditors of said H. H. McCardell, and, to prevent said real estate from being applied to the payment of his just debts, and keep the same to the use of said H. H. McCardell in fraud of the rights of his said creditors, that a deed was made to said Chase for said premises, without any consideration therefor. Such petition closes by asking that said deed be set aside, and that said real estate be subjected to the satisfaction of the judgment set forth in said petition, etc. H. H. McCardell and Matilda McCardell answered, traversing the petition by a general de nial. F. M. Chase filed a demurrer, which was overruled, and then by leave of court filed a general denial. When the said cause came on, for trial, the defendants demanded a trial by jury, which was refused by the court, and defendants duly excepted. The court gave judgment for the plaintiff, and H. H. McCardell and Matilda McCardell bring the case to this court.
The only question in the case in this court, is: Did the court below err in refusing the defendants) plaintiffs here, a trial by jury? This question must be answered in the negative. This is not one of the actions in which a party is entitled to demand a jury as a matter of right. In civil actions, a jury can be claimed as a matter of right only, for the trial of “issues of fact arising in actions for the recovery of money, or of specific real or personal property.” (Gen. Stat. 680, § 266.) Now this is not an action for the recovery of money. Neither is it an action for the recovery of real property. Nor is it an action for the recovery of personal property. The plaintiffs in error do not claim that this is either an action for the recovery of money, or for the recovery of personal property, but they seem to claim that it is an action for the recovery of real property. Now the only action that could be brought for the recovery of real property would be an action in the nature of ejectment, such as is provided for by §595 of the civil code; (Gen. Stat. 747.) This is clearly not that kind of action.
The judgment of the court below must be affirmed.
Brewer, J., concurring.
Horton, C. J., not sitting in the case. | [
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The opinion of the court was delivered by
Valentine, J.:
The only question involved in this case is, whether chapter 116 of the laws of 1870 (page 239) is constitutional and valid, or not. The substantial portion of that chapter reads as follows:
“Section 1. That section one of chapter 115 of the laws of the state of Kansas, approved March 1st 1869, be so amended as to read as follows: Sec. 1.-A11 persons owning or having charge of any sheep, shall keep the same from running at large, except as in this act otherwise provided: Provided, That the provisions of this act shall not; apply to the county of Doniphan.’ ”
Said original §1 of chapter 115 of the laws of 1869, (page 229,) reads as follows: “Sec. 1.-All persons owning or having charge of any sheep in Johnson, Chase, Brown, Dickinson, and Atchison counties, shall keep the same from running at large, except as in this act otherwise provided.” Section 2 of said last-mentioned act provides, that “the legal voters of any organized township in the said' counties shall have the right at any township or general election to vote to be exempt from the operations of the preceding section,” etc. Sections 3, 4 and 5 are concerning said election. Sections 6 and 7 provide for suits for damages caus.ed by sheep running at large in violation of said § 1; and § 8 provides for taking up sheep as strays if found running at large in violation of said §1. Now according to the decision made in the case of Darling v. Rodgers, 7 Kas. 592, said chapter 115 of the laws of •1869 is unconstitutional and void. It is in contravention of § 17 of article 2 of the constitution, which provides that “All laws of'a general nature shall have a uniform operation throughout the state.” If it were enforced it would prevent the fence laws, stray laws, and other laws of a general nature, which, in effect, permit sheep to run at large, from having “a uniform operation throughout the state;” and therefore it would seem that it ought to be held void. And if it were so" held, then it would be necessary to hold that there was nothing in the act of 1869 (ch. 115) to be amended. The act of 1870 was not intended to be a complete and original law in and of itself. It was intended merely as an amendment of §1 of the- act of 1869, and was intended merely to take the place of that section. And therefore it was not intended by the act of 1870 to absolutely prohibit sheep from running at large in all counties except Doniphan county; but it was only intended to .so prohibit them from running at large in such places only as should not become exempt from the provisions of section one, by a vote of the people had under § 2 of said act of 1869. But said § 2, as we have already stated, was void, and therefore the said act of 1870 could not by any construction have operation as intended by the legislature. We suppose it will hardly be claimed that the passage of the act of 1870 made valid the whole of the act of 1869, from section two to section ten. If it did, it would be an extraordinary kind of legislation; but if it did not, then the act of 1870 could not have operation as intended by the legislature. But said § 1 of the act of 1870 itself violates the provisions of §17, article 2, of the constitution. Tt is in substance a “law of a general nature,” and yet it is not to “have a uniform operation throughout the state.” Doniphan county is excepted from its operation. And the fence laws, stray laws, etc., are laws of a general nature, and yet these laws with respect to sheep, are by the operation of the act of 1870 to have operation in Doniphan county only.
We are constrained to hold that the act of 1870 is unconstitutional and void, and therefore the judgment of the court below must be reversed, and' cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Plaintiffs in error, by this proceeding,, seek to reverse the order of the court below confirming the sale of the real estate made by the sheriff in the action.. Upon the hearing of the motion to confirm, the plaintiffs in error interposed their motion to set aside the sale for the reasons —
“ 1st, That the sheriff returned Thomas H. Wills, as the-purchaser at the sale, when in truth and in fact said Wills did not bid upon nor purchase the real estate at the sale, but one H. M. Bradley bid upon and was the purchaser of the property for himself, and not for Wills:
“ 2d, That the attachment proceedings in the suit, in which,, after the judgment, the sale was made, were irregular, and not according to the provisions of law, as one of the persons selected and summoned by the sheriff to make an appraisement of the property attached was not a householder at the time of his. selection, nor at the time of the appraisement under the attachment:
“ 3d, That the real estate was at the date of the attachment,, at the time of the judgment, and on the day of sale, the homestead of plaintiffs in error, and still continues to be their homestead, and is exempt from forced sale under any process-of law; and that the judgment upon which the real estate was sold was not obtained for the payment of any obligation contracted for the purchase of the premises, nor for the erection of improvements thereon, nor was the execution issued to enforce any lien given by the consent of plaintiffs in error.”
The sale was ordered to satisfy a judgment wherein L. T, Stephenson was plaintiff, and James Z. Gapen was the only defendant. An order of attachment was issued and levied upon the land at the commencement of the action. Before the trial of the cause, the said James Z. Gapen moved to dissolve the attachment, assigning many causes, but including two of the grounds contained in the motion to set aside the sale, viz., that the land attached was the debtor’s homestead, and that the appraisement in the attachment-proceedings was irregular, as one of the appraisers was not a householder.
I. In support of the allegation that H. M. Bradley was^ the highest bidder at the sale and the purchaser, the court be low permitted the sheriff to testify, that he made the return of sale in the name of Thos. H. Wills, upon the written order of Bradley, who was in fact the purchaser of the property sold upon execution. The order of Bradley to the sheriff was to the effect, that he had trans- ' ferred the purchase made by him of the Gapen farm to Thos. H. Wills, and directing the sheriff to make his report of sale so that the confirmation would be in the name of Wills. The return upon the order of sale contradicts the statement of the sheriff, as therein the report is made, that he “sold at public auction the property for the sum of seventeen hundred dollars to Thomas H. Wills, he being the highest bidder, and the sum of $1,700 being the highest and best price bid for the land.” The sheriff might have been permitted by the court to have amended his return if it had been thought necessary, but the return could not be contradicted in this manner, and the first reason given for setting aside the sale is entirely insufficient. Bond v. Wilson, 8 Kas. 228; Starkweather v. Morgan, 15 Kas. 274. It seems also well settled, if the sheriff had made a return upon the order of sale, in accordance with the facts within his own personal knowledge, that upon a sale to Bradley, the deed could be made to Wills. The purchaser may at any time before the confirmation of the sale assign his bid to another, and the act will be confirmed by the court. Lessee of Ewing v. Higby, 7 Ohio 198, 204; Thompson v. Manama, 2 Disney’s Rep. 213; Jamison v. Indor, 3 B. Mon. 357; Frizzle v. Beach, 1 Dana, (Ky.) 212.
II. The fact that an appraiser summoned at the time of the attachment to inventory and appraise the property, was disqualified under the law to act, is no ground to se£ asi<je a sale made under an execution upon a final judgment subsequently rendered in the action in which the property sold was levied upon under the order of attachment. Where there has been a general appearance by a defendant in the case prior to such judgment, any mere irregularity in the service, or proceedings under a writ of attachment, not taken advantage of by the defendant contesting the action prior to the trial, is waived, and after judgment is no longer any matter of complaint. Sec. 228 of the pode (Gen. Stat. 1868, p. 672,) giving authority to discharge an attachment as to the whole or a part of the property attached, prescribes that the defendant is to make the motion before judgment. After judgment, and a decree to sell the attached property, the object of the appraisement under the process of attachment has been accomplished — the appraisement has become, so to speak, functus officio. Before a .sale can be made under the order of the court on the judgment, another appraisement of the real estate must be had. In this case however, a motion to dissolve the attachment, and discharge the property attached, was made within the time prescribed, but as no error is assigned thereon we do not consider this question in this opinion.
III. The last question to be considered is, whether under the circumstances, the sale should have been set aside upon the motion that the property was the homestead of said James Z. and Myra E. Gapen. Myra E. Gapen was not a party to the action in which the attachment was issued, the judgment rendered, or the sale made. None of her rights could be prejudiced by any judgment, decreej or order of the court to which she was neither a party nor privy. If the farm in controversy is a homestead, in a proper proceeding the wife can be fully heard, and the law will give her a time, and place, and tribunal to establish her legal claims. This court has already held that a judgment rendered against the husband alone is not a lien on the homestead. Morris v. Ward, 5 Kas. 239. The fact that the wife joins her husband in the motion to set aside the sale, does not make her a party to the suit, and we must disregard her appearance in the matter, and consider the case the same as if the motion hád been filed by James Z, Gapen alone. After Gapen had introduced all his evidence to support the motion to discharge the property as a homestead, Stephenson then offered in answer thereto the mo tion heretofore filed in the ease to discharge the attachment, and the order of the court overruling the motion. T]he mo- ' tion to set aside the sale, because the property was a homestead, was virtually a renewal of the motion previously made by Gapen, and overruled by the court to discharge the attached property. While the doctrine of res adjudieata, in its strict sense, does not apply in this ease, still, as the motion was once denied, and exceptions could have been taken thereto, and as the decision of the motion will not affect the ultimate rights of the parties in a regular suit involving the same issues, we see no cause for the interference of this court to reverse the order of the court below overruling the motion on the point presented, that the property is a homestead. “The court must be allowed a reasonable discretion in each case, in determining what shall, and what shall not be sufficient ground to set aside a sale.” White-Crow v. White-Wing, 3 Kas. 276.
The order of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought by Cullinan in the court below, as administrator de bonis non of the estate of John Sanderson deceased, against Dryfoos and others on the official bond of said Dryfoos, as administrator of said estate, to recover moneys received by Dryfoos as such administrator. The petition charged that Dryfoos was guilty of waste and unfaithful administration. Dryfoos was appointed administrator August 17th 1870, and his letters of administration were revoked by the probate court August 1st 1874. Cullinan was thereupon appointed administrator de bonis non of the said estate of Sanderson deceased. The record shows that no settlement, annual or otherwise, was ever made by Dryfoos as such administrator, and no statement or voucher for any disbursements by Dryfoos for the benefit of the estate was ever filed in the office of the probate court. The only report or statement of the assets and liabilities of the estate filed by Dryfoos was the inventory provided by the statute, and a paper showing the alleged indebtedness of the estate, of date of August 14th 1871. The plaintiffs in error claim the court below erred in refusing to allow Dryfoos for his services as administrator six per centum on the whole amount of personal estate and on the money arising from the sale of lands of the estate. The question is presented, whether in an action to recover on an administrator’s bond, when there has been unfaithful administration, the administrator guilty of dereliction of duty, is entitled to reduce the amount of money wrongfully detained by him after his removal from administratorship, by the commission prescribed in § 162, of the act relating to executors and administrators. We think not. Such a construction of § 162 would be grossly unjust. When a person is unfaithful to a trust confided in him, and compels the parties interested therein to resort to litigation to protect their rights, he forfeits his right to compensation for his services. Sumner v. Reicheniker, 9 Kas. 320. The section relied upon to give Dryfoos compensation was evidently intended to recompense an executor or administrator who performed beneficial services to an estate, or, in other words, who complied with the provisions of law regulating the discharge of his duties. To allow the six per centum claimed, as a valid reduction .from the moneys wrongfully detained by Dryfoos, after his removal from his trust, would distort the evident object of the law. The compensation provided, is for the services of executors and administrators; and to construe the section as contended for by the counsel of plaintiffs in error would make such compensation equally applicable for the payment of intentional or willful neglect of duty, as for services actually performed. As the record shows that Dryfoos failed to discharge his trust; as he was guilty of neglect of duty; as he failed to make his settlements as provided by law, and wrongfully refused to account for moneys collected belonging to the estate, the court below committed no error in disallowing his claim for six per centum commission. The services to such justify compensation had not been fully ren dered. As Dryfoos was not entitled to his claim for commission, his sureties on his bond could not be entitled to any deduction from the money due therefor.
The only other alleged error is that the court below refused to credit the account of Dryfoos with $39.80 due one A. T. Owens for “fees in the district court in the case of the heirs of John Sanderson, deceased, against W. H. Moore.” The court properly rejected this claim, as the record does not show said amount to have been a valid charge against the estate of Sanderson, and fails to show that the same had been paid by Dryfoos, or by any one for him.
No error appearing in the record, the judgment of the court below must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
"Valentine, J.:
This was an action in the nature of ejectment, brought by E. H. Paramore, against R. C. Campbell and Helen Campbell, for the recovery of certain real estate. The court below rendered judgment in favor of Paramore and against the Campbells on the following agreed statement of facts:
“ It is agreed by the parties to this action that the following are the facts in this case:
“ 1st. That the E.J of the S."W. J of section 10, township 17, range 19, Franklin county, Kansas, was allotted to Shahna-nib-na-se, an Ottawa Indian, under the provisions of article 3 of the treaty between the United States and the Ottawa Indians, ratified July 28th 1862, (12 U. S. Stat. at Large, 1237,) and that this was the only land he received under said treaty.
“2d. That said lands were patented to said Shah-na-nibna-se under the provisions of art. 7 of said treaty, which patent contains the restrictions upon alienation in said article 7 provided.
“3d. That at the time said lands were allotted to Shahna-nib-na-se, he was nine years of age; and that, on October 14th 1868, he was a minor, of the age of sixteen years, and that he was not a chief, headman or councilman, nor head of a family.
“4th. That on May 13th 1875, Shah-na-nib-na-se, then of full age, for a consideration of $500, sold and conveyed by warranty deed the whole of said E.-J of the S.W.J of section 10, township 17, range 19, to E. H. Paramore, plaintiff herein.
“5th. That the defendants are and have been for several years in the possession of said lands, and have made lasting and valuable improvements thereon.
“6th. That'the only question in this case is: Were the restrictions upon alienation upon Shah-na-nib-na-se, contained in art. 7 of Ottawa treaty of 1862, removed by art. 17 of Ottawa treaty of 1867, proclaimed October 14th 1868 ? (15 U. S. Stat. at Large, 517.) If so, the deed from Shah-nanib-na-se to E. H. Paramore, plaintiff, is valid, and plaintiff ought to recover; if not, judgment should be for the defendants.”
We think the judgment of the court below is correct. Under the treaty of 1862, (12 U. S. Stat. at Large, 1237, et seq.,) various allotments of lands were made, to-wit: 26^10 acres for a school; 10 acres for a church; 80 acres for each of the two children of the Eev. J. Meeker; five sections for the chiefs, councilmen and headmen of the Ottawa tribe of Indians; 160 acres to each head of a family of said tribe, and 80 acres to each and every other member of said tribe. Article 7 of said treaty provides for issuing patents, with certain restrictions upon alienation, to each of the different persons to whom land was allotted. These restrictions applied, with more or less force, to all the Indians, and to the two Meeker children. (Clark v. Libbey, 14 Kas. ,435, et seq.) One of said restrictions is as follows:
“And forty acres, including the houses and improvements of the allottee, shall be inalienable during the natural lifetime of the party receiving the title,” etc.
By article 17 of the treaty of 1867-8, (15 U. S. Stat. at Large, 517, 518,) these restrictions were to be removed from the Indians in the following words:
“In order to enable the tribe to dispose of their property in Kansas, and remove to their new homes, and establish themselves thereon, patents in fee simple shall be given to the heads of families, and to all who have come of age, among the allottees under the treaties of 1862, so that they may sell their lands without restrictions.”
Now it is true, these restrictions were not and could not be removed from Shah-na-nib-na-se under the provisions of said treaty at the time that said treaty took effect; for, at that time, he was only sixteen -years of age; and the treaty provided for issuing patents to those only, and removing restrictions from those only,,who were at the time of full age. But still we think the treaty applied to Shah-na-nib-na-se, and to every other member of his tribe, and that when he arrived at full age he was entitled to the patent, and then said restrictions were removed. The treaty of 1867-8 evidently intended to remove the restrictions from all of the allottees under the treaty of 1862 who were members of the Ottawa tribe of Indians, and probably did not intend to remove the restrictions from such of the allottees as were not members of such tribe. And the object of removing such restrictions, as expressed in the treaty itself, was, that all the members of the tribe might be able to sell their lands and remove to their new homes in the Indian country. That clause of the treaty above quoted starts out by saying that, “ In order to enable the tribe to dispose of their property,” etc. Now the word “tribe,” in this place, evidently means the members of the tribe, and all such members; and the pronoun “their,” evidently means and stands for the same thing; and so do the succeeding pronouns, “their,” and “themselves.” Said clause does not provide for issuing patents at the time of making the treaty, or at any other particular or definite time; but it provides for issuing patents at some indefinite time in the future — that is, any time in the future. We should therefore read that portion of said clause directly applicable to this question (leaving ont that portion not applicable,) as follows: At any time hereafter “patents in fee simple shall be given” “to all who have come of age.” And reading the clause in this way, patents should issue to all the allottees of the tribe who are of age, and to all others as they become of age; and the pronouns “they,” and “their,” in the words, “ so that they may sell their lands without restrictions,” would represent all members of the tribe, (including Shah-na-nib-na-se, as well as others,) and would mean the same thing as the previous words “ tribe,” “ they,” “ their,” and “themselves.” It would be strange if such were not the case. It would be strange if it was intended that Indians, who were minors when said treaty was made, should never be able to take their property, or the proceeds thex’eof, “to their new homes” in the Indian country. But this is what the plaintiffs in error (defendants below) claim. We think that when Shah-na-nib-na-se became of full age he was entitled to the patent provided for in said treaty of 1867-8, and that he then had power to sell his land. We presume that the patent was then in fact issued to him. It therefore follows that the title of the defendant in error (plaintiff below) is good, and that the judgment of the court below must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was a contested election case. The parties were candidates for the office of sheriff. The canvassers declared Long elected by one majority. Baker contested, and as ground of contest alleged a miscount, and prayed for a recount. Over the objection of Baker, Long filed an answer denying the miscount, and in a second paragraph alleged illegal votes, naming the voters. Baker replied to such second defense, with an allegation of illegal votes for Long.. Before the trial the court declared that the order of testimony would be, first, Baker’s testimony in support of his statement; then Long’s, in favor of his answer; and then Baker’s, in support of his reply. On the trial the recount was had, and by it Long had two majority. Baker rested. Long asked for judgment, which was refused. He asked leave to dismiss the second paragraph of his answer, which was refused. He then, offering no testimony in support of his answer., rested. Baker then offered testimony in support of his reply. Long objected, but the objection was overruled, and the testimony received, showing three illegal votes in favor of Long. Long then sought to introduce his testimony to show illegal votes in favor of Baker, which was refused. Judgment was rendered in favor of Baker, declaring him elected sheriff by one majority. Long prosecuted his petition in error in the district court, which reversed the ruling of the court for contested elections. On the reversal, Baker moved the district court to hold the case for trial, or remand it to the contest court for further proceedings, but the court overruled the motion, and rendered judgment in Long’s favor for the costs of both courts. Baker now brings the record here for review.
Upon this we remark, first, that the inquiry before a contest court is not necessarily limited to the matters presented in the contestor’s statement. Such a statement is in the nature of a petition, and the contestee may defend against it both by denial, and by proof of other matters showing his right to the office, notwithstanding the facts contained in the statement. In other words, he may file an answer containing both a denial and new matter. • The contestor may also reply to such new matter. We remark again, that where a reply is filed to an answer containing new matter, it cannot be taken as presenting a new and independent matter of contest, but-must be deemed as simply a reply to the answer, and only available as a defense to such new matter. In other words, a party by his reply cannot add a new cause of action to his petition. He cannot, when the testimony fails to sustain the ground of contest alleged in his original statement, abandon that, and rely upon the facts alleged in the reply as constituting his cause of action.
Whether a party can by amendment of his statement add a new ground of contest, after the expiration of the twenty days from the canvass within which the statement must be filed, need not be decided, for no amendment of the statement was asked, no attempt made to add to it a new ground of contest, and the reply states upon its face that it is filed as a reply to the new matter set up in the answer. It seems to follow from this,\hat the contest court erred, and that the ruling of the district court must be affirmed. It was not necessary to remand the case to the contest court for further proceedings, or to hold the case in the district court for a trial de novo, for the contest court made special findings of fact, and one not excepted to by the contestor was that the recount gave Long two majority. Upon the findings therefore, and the pleadings, the judgment should have been in favor of Long.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from an action for damages which resulted from the collision of two motor vehicles.
The plaintiff was driving north on Fifth Street, a secondary traffic-way, in Osage City, Kansas. The defendant, William Christesen, was parked on Market Street, a main through-way of Osage City, about sixty-five feet west of Fifth Street. He backed his car into the street and started driving east. The collision occurred at the intersection of the two streets.
The jury returned a verdict in favor of the plaintiff. The defendants have appealed raising numerous alleged trial errors.
Without further consideration of the facts, we pause to give attention to appellee’s motion to dismiss the appeal. The appellee contends that the appellants, having filed a motion for an order reducing the verdict after their motion for new trial and other motions had been overruled, waived any alleged trial errors.
The procedure leading up to the question should first be presented.
On September 18, 1962, the jury returned a verdict in favor of appellee in the amount of $5,492.82. The court entered judgment approving the verdict on the same day.
The appellants filed a motion for a new trial setting forth the statutory grounds. They also filed motions to set aside answers to special questions and for judgment non obstante veredicto.
On November 15, 1962, the trial court overruled the motion for new trial and the other motions mentioned. Some three weeks after the overruling of the motion for new trial and other motions, the appellants filed their motion to reduce the verdict which reads: “Come now the defendants and move the court to enter an order of remittitur herein, and in support thereof respectfully submit to the court that the evidence most favorable to the plaintiff did not support a verdict in the amount rendered.”
On January 4, 1963, the motion for remittitur was heard by the trial court. Following argument of counsel and the submission of the motion to the court, counsel for appellants made an oral motion to withdraw the motion for remittitur. The appellee objected to the motion to withdraw and the oral motion was denied. The court then took the motion for a remittitur under advisement.
On January 11, 1963, the court set aside its order of November 15, 1962, overruling the motion for new trial and entered an order to the effect that if appellee would accept a remittitur of $130.24 within five days, the motion for new trial would be overruled, otherwise it would be granted. The remittitur covered an improper allowance made by the jury for medical expense.
On January 17, 1963, the appellee, having accepted the remittitur in writing, the court overruled the motion for new trial and entered judgment for the appellee in the amount of $5,362.58.
On January 20, 1963, the appellants filed a notice of appeal from the following orders:
“1. The court’s entry of judgment and order of September 18, 1962, accepting and approving the jury’s general and special verdicts and ordering the same filed and judgments entered thereon.
“2. The court’s order, judgment and decree of November 15, 1962, overruling the defendants’ motion to set aside answers to special questions, motion for new trial, and motion for judgment non obstante veredicto, and the court’s order and judgment in favor of the plaintiff and against the defendants.
“3. The court’s order on the 4th day of January, 1963, overruling defendants’ motion to withdraw defendants’ motion for remittitur, and the court’s order dated January 11 [17], 1963, overruling defendants’ motion for new trial, which order ordered plaintiff to remit One Hundred Thirty Dollars Twenty-four Cents ($130.24) of the verdict and file a remittitur within five (5) days, in which event motion for new trial would be overruled.”
It is a well established rule of law that an appeal will be dismissed upon a showing that the appealing party has acquiesced in or invited the making of the order from which the appeal is taken. (Sisk v. Edmonston, 163 Kan. 394, 182 P. 2d 891 and Newsome v. Anderson, 164 Kan. 132, 187 P. 2d 495.)
However, we need not labor with the general rules of law applicable to the question as we have a decision exactly paralleling the case at bar. In Hawkins v. Wilson, 174 Kan. 602, 257 P. 2d 1110, this court had under consideration the effect of a motion to reduce a verdict after a motion for new trial and other motions had been overruled. The opinion reviewed at some length the established rules dealing with situations where parties by their own conduct and action are preclude from maintaining an appeal and held:
“The record in an action to recover damages for personal injuries in which the plaintiff recovered and the defendant appealed examined, and it is held, that the defendant is estopped and cut off from his rights of appeal by reason of a motion to reduce the verdict, and other facts set forth at length in the opinion, disclosing that he invited and gave implied consent to' the trial court’s action in reducing the verdict; in rendering its judgment; and in overruling his motion for a new trial.” (Syl.)
We are forced to conclude that where defendants file a motion for a reduction of a verdict after their motion for new trial has been overruled, they waive all alleged trial errors and submit the case to the trial court for its determination of the propriety of the amount of the verdict.
The appeal is dismissed.
APPROVED BY THE COURT.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Fatzer, J.:
The plaintiff sues to recover $16,819 for an alleged breach of a written contract to drill an oil and gas well. The appeal is from an order of the district court overruling the plaintiff’s motion to strike the defendants’ third amended answer and cross petition from the file.
The supreme court has only such appellate jurisdiction as is conferred by statute pursuant to Article 3, Section 3, of our Constitution, and when the record discloses lack of jurisdiction, it is the duty of the court to dismiss the appeal. (Polzin v. National Cooperative Refinery Ass’n, 179 Kan. 670, Syl. ¶ 1, 298 P. 2d 333.)
Considering the record presented, our statute (G. S. 1949, 60-3302, 60-3303) and our decisions preclude appellate jurisdiction to review the plaintiff’s motion to strike the defendant’s pleading from the file. To be reviewable, and therefore appealable, the motion to strike must be sustained, striking out all allegations which affect a substantial right, and in effect determine all or part of the action, or in the case an an answer or cross petition, deprive the defendant of a meritorious defense or cause of action, which, if supported by evidence, would defeat the plaintiff’s cause of action or a part thereof, or deny recovery to the defendant. It has been consistently held that an order overruling a motion to strike allegations from a pleading, or to strike the pleading itself, did not constitute a final order within the meaning of the foregoing statute and, prior to final judgment, was not appealable. (Nelson v. Schippel, 143 Kan. 546, 547, 56 P. 2d 469; Barnhouse v. Rowe, 178 Kan. 248, 252, 284 P. 2d 618; Nausley v. Nausley, 181 Kan. 543, 545, 313 P. 2d 302; Fernco, Inc., v. Kennedy, 181 Kan. 25, 30, 309 P. 2d 400; Farran v. Peterson, 181 Kan. 145, 147, 309 P. 2d 677; Marshall v. Duncan, 182 Kan. 540, 543, 544, 322 P. 2d 762; Lee v. Johnson, 186 Kan. 460, 350 P. 2d 772; Hodge v. Freeman, 187 Kan. 650, 653, 359 P. 2d 845; Schauf v. Peter Kiewit & Sons Co., 187 Kan. 180, 182, 354 P. 2d 687.)
In Pulliam v. Pulliam, 163 Kan. 497, 183 P. 2d 220, 1 A. L. R. 2d 418, it was said:
Our code of civil procedure specifies the particular matters on which a trial court’s rulings will furnish a basis for an appeal (G. S. 1935, 60-3302). Resort to its provisions does not reveal that an order overruling a motion to strike is one of them. Clearly the motion to strike does not involve the merits of the action or any part thereof. . . . True enough, we have held that an order striking a petition from the files is a final order and therefore appealable (Hicks v. Parker, 148 Kan. 679, 84 P. 2d 905; Dwinnell v. Acacia Mutual Life Ins. Co., 155 Kan. 464, 126 P. 2d 221). The reason for the rule announced in the decisions just cited is so obvious as almost to preclude the necessity of commenting upon it. When a motion to strike is sustained the plaintiff’s right to proceed with the cause on its merits is wiped out with the result the ruling is to all intents and purpose a final order for which the code gives a right of appeal. But the converse of such ruling has no such consequence. The overruling of a like motion does not determine the action or prevent a judgment. It not only leaves the defendant free to conduct his defense but also permits him after the cause has been tried upon its merits to present alleged trial errors and irregularities on final appellate review.” (l. c. 498, 499.)
It is clear that, based upon our statute and settled rules of law evidenced by our many decisions, the order of the district court overruling the plaintiff’s motion to strike the defendants’ third amended answer and cross petition from the file did not constitute a final order for appellate review, and this court has no jurisdiction to entertain the appeal on the merits. The plaintiff is free to file his reply to the third amended answer and cross petition as allowed by the district court on November 5, 1962, and after the case has been tried, to present alleged trial errors and irregularities to this court on appeal.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from a conviction of burglary in the second degree and attempted grand larceny.
The evidentiary facts supporting the conviction will be summarized.
The home of Mr. and Mrs. John Silvey in Independence, Kansas, is located about a block from the Dr. Pepper Bottling Company plant. This plant is lighted by floodlamps at night. The occupants of the home have an unobstructed view of the East and North sides of the plant building.
At about 9:00 o’clock P. M. on September 3, 1962, Mr. and Mrs. Silvey saw four men at the East Side of the plant building. They could not discern the features of these men but they were all fairly tall and one of them had on a light colored shirt. As they continued to observe the four men, a car passed the bottling plant and they saw four men crouch down behind some crates. When the car passed, the Silveys saw the four men enter the building by a side door and disappear inside. Mr. Silvey then called the police. Within a short time a police car came from the East and circled the bottling company building. As the police car completed its circle and came back by the door, which the four men had used in entering, the Silveys saw one man emerge from the plant through the same door. They could not discern the features of this man nor did they know who he was but they did see that he was fairly tall and that he had on a light bright colored shirt. After the man in the light colored shirt emerged from the bottling plant, the Silveys saw him start walking east away from the building across the parking area to a point where he was stopped by the officers in the police car. They also saw the man placed in the police car and then observed the car with the officers and the man drive off.
Further investigation by the officers disclosed that the glass from the door on the east of the plant building had been broken out; that such door had been forced open; that broken glass was strewn about the floor of the building; that the company’s safe had been removed to the rear next to the large overhead door on the east side of the building; that the dial of the safe had been knocked off and the safe bore evidence of pry marks; that scattered about the safe on the floor were various hand tools; and that glass particles found in the soles of the defendant’s boots were similar spectroscopically to glass found on the floor of the building.
When defendant, Wayne D. Earley, was apprehended by the officers he was wearing a pink shirt.
The appellant specifies three trial errors, other than the overruling of his motion for a new trial.
The first contention is based on the premise that the trial court erroneously refused his request for a continuance.
Appellant had subpoenaed a witness who had attended the first day of the trial. When this witness was called to testify it was discovered that he was at home ill and confined to his bed. Thereupon appellant orally requested a continuance. Without submitting an affidavit his counsel made a statement as to what the testimony of the missing witness would be. The State refused to stipulate that the witness would so testify. Appellant then requested that the case be passed for a few days. The court stated that it did not want to keep the jury under scrutiny and admonishment for a week, but that it would continue the case to the next term if appellant would pay the costs. Counsel for appellant stated that he was unable to pay the costs. The court considered the testimony of the appellant’s continuous employment while on bail, also other obvious facts, and concluded that he was able to pay the costs. It then denied the continuance.
Continuances in a criminal case are governed by the provisions of the statute applicable to continuances in civil cases. See G. S. 1949, 62-1414.
The applicable section of our civil code is G. S. 1949, 60-2934. It provides in part:
“A motion for a continuance on account of the absence of evidence can be made only upon affidavit; . . . and if it is for an absent witness the affidavit must show where the witness resides, if his residence is known to the party, and the probability of procuring his testimony within a reasonable time, and what facts he believes the witness will prove, and that he believes them to be true. . . .”
The foregoing statute clearly states that a motion for continuance on account of an absent witness must be made upon affidavit. The requirement is mandatory. See Minch v. Winters, 122 Kan. 533, 541, 253 Pac. 578; State v. Stephens, 146 Kan. 660, 661, 72 P. 2d 975; State v. Smith, 173 Kan. 807, 811, 252 P. 2d 917.
A continuance may also be granted under the provisions of G. S. 1949, 60-2933, which states:
“The court may for good cause shown continue an action at any stage of the proceedings upon such terms as may be just. When a continuance is granted on account of the absence of evidence, it shall be at the cost of the party making the application, unless the court otherwise order.”
The court offered to grant the appellant a continuance to the next term on his paying the costs which had accrued in the trial. The appellant refused and he is in no position to complain on appeal.
There is another reason why appellant’s contention on the point now under consideration is without merit. The record clearly discloses the testimony of the absent witness would have been cumulative of the testimony given by the State’s witness. He would have testified that shortly after the burglary he drove by the Dr. Pepper plant and saw three men at the East door but could not identify them. After he turned around and approached with his lights on, he identified the men as investigating officers. The testimony of Mr. and Mrs. Silvey was to the same effect. They saw four men but they did not attempt to identify them. They only discerned four tall men, one of whom was wearing a light colored shirt, and they were unable to identify the defendant.
The testimony of the absent witness would have served no purpose as it did not purport to rebut the testimony of the State’s witnesses as to appellant’s identity.
In Konitz v. Board of County Commissioners, 180 Kan. 230, 235, 303 P. 2d 180, we said:
“. . . Nor was it alleged that the affiant believed the nature of the evidence to be true. The trial court did not abuse its discretion in overruling the motion by reason of plaintiffs’ failure to comply with the statute. Moreover, as disclosed by the record, what plaintiffs thought the absent witness would testify to was nothing more than cumulative evidence of other witnesses who testified for plaintiffs. (See Lamer v. Lamer, 170 Kan. 579, 583, 228 P. 2d 718.)” (p. 235.)
The granting of a continuance is largely in the discretion of the trial court. Its ruling will not be disturbed unless it appears that such discretion has been abused and the substantial rights of the accused prejudiced. The record is devoid of any such showing.
Appellant’s next contention is that the mention of prior convictions was improperly injected into the case.
The appellant called his employer as a character witness. The employer testified that he was the appellant’s employer, that he had known him for about a year, and that his reputation was good. The employer testified on cross-examination that he interviewed the appellant for employment and inquired into his background and personal history. He further testified:
“Q. Did he tell you at that time that he had ever been previously arrested? A. No, not at that time.
“Q. He didn’t mention the fact that he had been arrested once for being drunk and for disorderly conduct and a second time for larceny?
“Q. You say he didn’t tell you those things? A. No.”
A witness who testified as to the good character of the accused may be questioned as to knowledge of traits or acts inconsistent therewith.
In The State v. Killion, 95 Kan. 371, 378, 148 Pac. 643, we said:
“. . . Where witnesses have testified to the good character of the defendant it is permissible to inquire of them whether they have not heard reports of particular instances which are inconsistent with the good reputation to which they have testified, and in that way seek to weaken or qualify the testimony which they have given. (The State v. McDonald, 57 Kan. 537, 46 Pac. 966; The State v. Yeater, ante, p. 247, 147 Pac. 1114; 12 Cyc. 416.)” (p. 378.)
See, also, The State v. McDonald, 57 Kan. 537, 539, 46 Pac. 966, which we pause to note is cited with approval in State v. McKee, 131 Kan. 263, 265, 291 Pac. 950, where this court said:
“. . . It is not generally permissible, after a witness has testified to the fair reputation of a defendant in a particular respect, to cross-examine as to specific acts, doings or offenses of the defendant; but, as the general reputation of any person is established by the opinions of witnesses as to the general estimation of his character, it is allowable to call their attention to reports inconsistent with such good reputation, and thus to weaken or qualify the testimony of such witnesses; and on this principle the Court did not err in the latitude allowed in cross-examination in this respect. . . .” (pp. 539, 540.)
We have examined the case of State v. Stephenson, 191 Kan. 424, 381 P. 2d 335, cited by appellant in support of this contention. That case involves the introduction of evidence of previous con victions in the State’s case in chief, and is neither applicable to, nor controlling of, the facts in the instant case.
Finally appellant contends that the Act under which he was convicted, i. e., Laws of 1953, Chapter 184 (now G. S. 1961 Supp., 21-520), violates the portion of Article 2, Section 16 of the Constitution of the State of Kansas which reads: “No bill shall contain more than one subject, which shall be clearly expressed in its title,
The Act, Laws of 1953, Chapter 184, omitting certain provisions regarded as here immaterial, reads:
“An Act relating to burglary in the second and third degree, amending section 21-520 of the General Statutes of 1949, and repealing said original section.
“Be it enacted by the Legislature of the State of Kansas:
“Section 1. Section 21-520 of the General Statutes of 1949 is hereby amended to read as follows: Sec. 21-520. Every person who shall be convicted of breaking and entering in the nighttime— . . . , any shop, store, booth, tent, warehouse, or other building, or any boat or vessel, in which there shall be at the time some human being, or any goods, wares or merchandise, or other valuable thing kept or deposited; . . . with the intent to steal or commit any felony therein, shall on conviction be adjudged guilty of burglary in the second degree: Provided, That if the evidence produced at any trial of any person charged hereunder, shall in the opinion of the jury or judge, if tried to the court, be insufficient to prove that the alleged crime was committed in the nighttime, the jury or judge, if tried to the court, may find the defendant guilty of burglary in the third degree and if the jury or court shall so find, such defendant shall be punished as provided by section 21-523 of the General Statutes of 1949 or any amendments thereto.”
Appellant suggests that the statute provides for punishment which is not contained in the title.
The purpose of the title is call attention to the contents of the bill so members of the Legislature and the general public may be fairly informed as to what the Act implies. (City of Lawrence v. Robb, 175 Kan 495, 502, 265 P. 2d 317; State, ex rel., v. City of Wichita, 184 Kan. 196, 199, 335 P. 2d 786.)
It is not necessary that the title be an index, a synopsis or abstract of the entire Act in all its details. It is sufficient if the title indicates clearly, though in general terms, the scope of the Act. (In re Sanders, Petitioner, 53 Kan. 191, 198, 199, 36 Pac. 348.)
The more general the language of the title the broader the subject matter of the Act may be, due reference being given to the requirements of Article 2, Section 16, that the subject matter be clearly expressed in the title. (State, ex rel., v. City of Wichita, 199, supra; State, ex rel., v. McCombs, 129 Kan. 834, 838, 284 Pac. 618.)
Whenever the penalty is fairly incidental to the regulation of the subject expressed it may properly be included in the Act without special mention in the title. (See Bourke v. Dickson, 115 Kan. 71, 73, 222 Pac. 94; The State v. Scott, 109 Kan. 166, 167, 168, 197 Pac. 1089; The State v. Wilcox, 64 Kan. 789, 790, 68 Pac. 634.)
Where an Act deals with burglary any reasonable person would anticipate some provision for punishment.
Appellant also suggests that the Act contains a plurality of subjects — burglary in the third degree and burglary in the second degree.
It is true that the Legislature cannot legislate on two unrelated subjects in the same bill. (State, ex rel., v. Shanahan, 178 Kan. 400, 286 P. 2d 742.) However, the Act under consideration does not deal with unrelated subjects.
Burglary is commonly understood as breaking and entering for the purpose of committing a theft. Burglary in the second degree constitutes breaking and entering in the nighttime for the purpose of theft. Burglary in the third degree constitutes breaking and entering in the daytime for the purpose of theft. The two are very closely related.
In Shrout v. Rinkekr, 148 Kan. 820, 822, 84 P. 2d 974, the purpose of the constitutional restriction was stated:
. . The reason for the constitutional provision that an act shall not contain more than one subject, which shall be clearly expressed in its title, is to prevent two or more unrelated subjects being covered in an act so that members of the legislature would feel that they should vote for a bill which contained a provision to which they were opposed in order to secure the enactment of the bill with some provisions they considered important. . . .” (p 822.)
There is not such a distinction between second and third degree burglary as to influence the legislature to vote for or against the enactment of Laws of 1953, Chapter 184, now G. S. 1961 Supp., 21-520.
Our careful review of the record fails to disclose any trial errors, or defects in the statute under which the accused was convicted, justifying a reversal of this case.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Brewer, J.:
The question presented in this case is as to the measure of damages on the laying-out of a public road. The court permitted the land-owner to show the value of the land taken, and the cost of removing a fence, whose removal was necessitated by the opening of the road. This was right, and no objection can be raised thereto. But the court refused to permit the county to show what benefits accrued to the land of claimant from the opening of the road; and of this the plaintiff in error complains. The question was presented to the court in two or three different ways, and the ruling of the court was direct and positive, that no benefits resulting from the road could be set off against the damages. Was this error ? Outside of any special constitutional or statu^017 restrictions, the right of the state to take private property for public use, and the corresponding right of the individual to receive compensation for the property thus taken, maybe assumed. We know that the existence of this right to compensation is denied ; but we shall assume in this case that it exists. But this compensation is secured if the individual receive an amount which, with the direct benefits accruing, will equal the loss sustained by the appropriation. We of course exclude the indirect and general benefits which result to the public as a whole, and therefore to the individual as one of the public; for he pays in taxation for his share of such general benefits. But if the proposed road or other improvement inure to the direct and special benefit of the individual out of whose property a part is taken, he receives something which none else of the public receive, and it is just that this should be taken into account in determining what is compensation. Otherwise, he is favored aboye the rest, and instead of simply being made whole, he profits by the appropriation, and the taxes of the others must be increased for his special advantage. Upon general principles then, and with due regard to right and justice, it should be held, that the public may show what direct and special benefits accrue to an individual claiming road damages, and that these special benefits should be applied to the reduction of the damages otherwise shown to have been sustained. State v. Blanvelt, 34 N. J. 263. There is nothing in the statute to alter or restrict the rule thus founded on the general principles of right and justice — nothing to indicate what matters are to be taken into account, and what omitted, in ascertaining the compensation to which the land-owner shall be entitled. Its language is, “Said viewers shall also assess and determine the amount of damages sustained by any person or persons through whose premises the said road is proposed to be established.” Gen. Stat. 899, .§5; Laws 1872, p.353, §3; Laws 1874, p. 166, § 5. The word “damages” is of general import, and is equivalent to compensation. It includes more than the' mere value of the property taken, for often the main injury is not in the value of the property absolutely lost to the owner, but in the effect upon the balance of his property of the cutting out of the part taken. He is damaged therefore, more than in the value of that which is taken. Conversely, the appropriation of the part taken to the new uses for which it is taken may operate to the direct and special improvement and benefit of that not taken. Surely, this direct increase in value, this special benefit resulting from the improvement the public is making, and for which it must be taxed, reduces the damages he has sustained. °
Nor does the constitution change the rule. Art. 12, §4, pi’ovides that, “No right of way shall be appropriated to the use of any corporation until full compensation therefor be first made, * * * irrespective of any benefit from any improvement proposed by such corporation.” This has been construed by many as apply ing to the opening of public roads. Such seems to have been the view of the learned justice of the U. S. circuit court for this circuit. Eidemiller v.Wyandotte City, 2 Dillon, 376. But we are constrained to think this is a mistake. The section is in an article on corporations, True, one section, § 5, ■ refers to municipal corporations proper, “ cities, towns, and villages; ” and the manifest scope of the article is limited to private corporations, and municipal corporations proper. Beach, v. Leahy, 11 Kas. 23. Another article is devoted to county and township organizations. (Art. 9.) But chiefly, the language of the section itself seems to exclude public highways. “No right of way shall be appropriated to the use of any corporation.” But a public road is not for the use of a “ corporation ; ” it is for the use of the public. Its use is not limited to any one, nor especially designed for any one. No individual, no corporation, private or municipal, has any special use or benefit from it. It is free to all, and all have equal rights in it. Certain ways are appropriated to the use of corporations, such as turnpike roads, railroads, canals, etc. In these the corporation owners have a special use, and derive a special benefit. The rights of the public are limited, .and subordinate to the rights of the corporatiqn.' In a true and natural sense of the language, the way is appropriated to the use of the corporation. Again, the compensation is to be made “ irrespective of any benefit from any improvement proposed by such corporation.” But in a public road no corporation is proposing an “improvement.” No corporation has any necessary connection with the road. True, the ordinary proceedings for the opening of roads are had before the county commissioners, but this is not necessarily nor always so. Section lines are often by direct legislative enactments declared highways. Commissioners are also often appointed by the legislature to lay out highways. And the functions of the county commissioners may as well, so far as any question of power is concerned, be committed to any other body or officer. They are simply a part of the machinery which the legislature has in its wisdom provided for opening and securing to the public the use of all necessary highways. In short, there is no element of corporation use or interference in public roads. And the section is limited to those cases in which some corporation takes a use or benefit in the proposed way, as distinguished from the use and benefit enjoyed by the public. In some states the constitutional provision concerning the appropriation of land for public uses explicitly mentions and includes public roads. Const, of Iowa, 1857, art. 1, § 18. Of course therefore, in that state, the general rule as heretofore stated is thus limited; but where, as with us, there is no Special constitutional or statutory restriction, the general rule applies.
The judgment of the district court will therefore 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 was an action of replevin, brought by Ebenezer J. Gamble against W. B. Hodges. The judgment in the court below was in favor of the defendant and against the plaintiff, and the plaintiff now brings the case to this court. He assigns for error in this court, “That the said judgment was given for the said Hodges when it ought to have been given for the said Gamble, according to the law of the land.” (See Brown v. Rhodes, 1 Kas. 359; Green v. Dunn, 5 Kas. 262.) This is the only error assigned. The case was tried in the court below, without a jury. The court found generally in favor of the defendant and against the plaintiff in the following words: “The said court, after hearing the evidence and the arguments of counsel, doth find that, at the time of the commencement -of this action the right of possession of said property was in the defendant, and that the value of said property was the sum of $108.” No motion was made to set aside this finding, or for a new trial. No exception was taken thereto; and we are inclined to think it is correct. It is certainly sufficient to sustain the judgment. “The defendant excepted to the judgment” — in these very words. But the plaintiff took no exception to the judgment, or to any ruling, finding, or decision made in the' case.
The judgment of the court below must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was originally commenced in a justice’s court. After trial and judgment before the justice, the case was appealed to the district court, where it was again tried, by the court and a jury, upon a petition, answer, and reply. The verdict of the jury was in favor of the plaintiffs below (defendants in error,) and against the plaintiff in error, Clippenger, who was defendant below. The jury assessed the damages at $93.68. The district court rendered judgment, “that the plaintiffs have and recover of and from the said defendant Peter Clippenger the sum of $93.68, as aforesaid found due, and the further sum of $- as costs in this behalf expended; and ordered that execution issue therefor.” The defendant Clippenger then made a motion to set aside the verdict of the jury, and for a new trial, on the ground that “the said verdict is against the evidence in the case,” which motion was overruled. The defendant then brought the case to this court, and makes the following assignments of error:
“1st, The district court erred in overruling the motion to set aside the verdict of the jury, and grant a new trial.
“2d, The district court erred in rendering judgment in favor of said plaintiffs, when the evidence in the cause produced by the plaintiffs shows that the judgment should have been for defendant.
“3d. The district court erred in rendering judgment for plaintiff against the weight of the evidence in the casé.
“4th, The district court erred in rendering judgment against Peter Clippenger for costs as well in the district court as in the court of the justice of the peace before whom the trial was had; that the costs taxed by said justice of the peace were erroneous, illegal, and extortionate.”
We think the verdict of the jury is sustained by sufficient evidence. But certainly we cannot say that it is not sustained by sufficient evidence, for the record does not show that all the evidence has been brought to this court.
It will be seen that the costs of this case have not yet been taxed, and the judgment with reférence to the amount thereof is left blank. It would seem that the plaintiff in error has fears that the costs may be taxed erroneously. We presume however that they will be taxed correctly. The judgment will certainly authorize a correct taxation of the costs. If however the clerk should tax them erroneously the court below would undoubtedly correct the taxation on motion. (Linton v. Housh, 4 Kas. 536, 541.)
We perceive no error in this case; and therefore the judgment of the court below must be affirmed.
Brewer, J., concurring.
Horton, C. J., not sitting in the case. | [
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The opinion of the court was delivered by
"Valentine, J.:
This was an action brought by Lucy F. Holman and her husband C. Holman against Israel Nicklisson, to set aside a certain sale and conveyance of real estate made by them to him. The title to said real estate was in Mrs. Holman, and she through her agents C. Holman and J. R. Hibbard sold the same to said Nicklisson, and then she with her husband executed a proper deed for the premises to Nicklisson. The action was tried by the court, without a jury. The court found generally in favor of the plaintiffs, and against the defendant, and judgment was rendered accordingly, and the defendant brings the case to this court. The principal objections urged in this court to the proceedings in the court below are, that neither the petition below nor the evidence is sufficient to sustain the judgment. No objection was made to the petition in the court below; and neither party asked the court to find otherwise than generally. Therefore, unless we should find some fatal defect in the petition, or the evidence, it would be our duty to affirm the judgment. If by a liberal construction of the petition, and of that portion of the evidence which tends to sustain the judgment, we should find that they are sufficient to sustain and uphold the judgment, then it would be our duty to say that no substantial error was committed in the case. And so construing the petition and the evidence, we think they are sufficient. The evidence is probably weakest in showing that the defendant made false and fraudulent statements, and that the plaintiffs relied upon the same, and were thereby induced to make said sale and conveyance. But as the court below found upon these matters, as well as upon others in the case, in favor of the plaintiffs and against the defendant, and as there was some evidence to support all these findings, and as such findings are findings of fact, and not of law, we are not authorized, merely because of such weakness of the evidence, to reverse the judgment of the court below and grant a new trial. Within the rules heretofore enunciated by this court, we think the evidence was sufficient.
The alleged false and fraudulent statements were however not made directly to Mrs. Holman, but were made to her agents, C. Holman and J. R. Hibbard; and it is now claimed that such statements were never communicated to her. Whether this is true or not, as a fact, it is not true in law. In law, whatever comes to the knowledge of an agent, comes to the knowledge of his principal; and whatever is done by an agent, within the scope of his agency, is done by his principal. ■ The agent, with reference to third parties, and within the scope of his agency, is to all intents and purposes the principal. Whatever Nicklisson said to Mr. Holman and Hibbard affecting the negotiations, he in law said to Mrs. Holman. But it is further claimed that it was not sufficiently shown that the effect of said statements was still operating on the minds of the plaintiffs when they executed said deed. We think it was. The negotiations commenced about December 20th 1873, and ended January 3d 1874, when said deed was made, occupying about fourteen days. And the whole of these negotiations from the beginning to the end, including the sale and the deed, were merely parts and portions of only one and the same transaction. Whatever operated to produce the sale, it will be presumed, in the absence of anything to the contrary, operated to produce the deed, although the deed may not have been executed on the same day the sale was made. There was not a particle of evidence tending to show that the effect of said statements had ceased to operate on the minds of the plaintiffs when they executed said deed. We must therefore infer that the execution of said deed was induced by said alleged false and fraudulent statements.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This is a tax-title case involving the same questions as those presented in the case between the same parties heretofore decided by this court. (Morrill v. Douglass, 14 Kas. 293.) A motion for reargument was presented in that case, and heard at the same time with this. That motion has been overruled, and it is unnecessary to say more than that the reargument has not’succeeded in altering our views as then expressed. It was a singular omission that the learned counsel never, in his brief, nor in his elaborate and extended argument, once alluded to that peculiar section of our statute by which the legislature has announced its will concerning tax titles. That section was first enacted in 1862, and as amended in 1868 now reads:
“No irregularity in the assessment-roll, nor omission from the same, nor mere irregularities of any kind in any of the proceedings, shall invalidate any such proceeding, or the title conveyed by the tax-deed; nor shall &ny failure of any officer or officers to perform the duties assigned him or them, upon the day specified, work an invalidation of any such proceedings, or of said deed.” Gen. Stat., p. 1057, § 113.
This disposes of a vast multitude of questions which the ingenuity of counsel, here and elsewhere, have raised concerning tax titles. A mere irregularity counts for nothing as against a tax-deed in Kansas.
One question is presented in this case which did not exist in that, and requires separate notice. The tax-deed held good was upon a sale in 1863 for the taxes of 1862. At the time of this sale the county held a certificate on a sale made January 1st 1862, for 'the taxes of 1860; and the law then in force (Comp. Laws, p. 868, §48,) provided, that “no lands or town lots, so bid off for the county, shall be sold for any taxes levied subsequent to such bid, until it shall have been redeemed, or shall be sold by the county, or the tax certificate issued to the county shall have been assigned.” To obviate this, counsel reply, that the statute attempting to authorize a sale on January 1st 1862 for the taxes of 1860 was unconstitutional and void, and therefore that the sale and certificate were equally invalid. The act to which he refers is eh. 84 of the laws of 1861, and the objection to it is, that though plainly a general law it is not made of uniform operation throughout the state, but is specifically limited to certain portions and counties. Darling v. Rodgers, 7 Kas., 592. We concede the claim, that if the sale and certificate were void in the hands of the county, there was no restriction on its purchasing in 1863; and that if the sale was made at a time not authorized by law, the sale, and certificate reciting such a sale, were both void. But whether the statute cited be unconstitutional or not, we do not decide, for under a peculiar section of the law of 1860 we have already decided that a sale might under some circumstances be made upon a day other than the regular sale-days, and that therefore a deed reciting such a sale was prima faoie valid. Patterson v. Carruth, 13 Kas. 494. Of course, the certificate would be equally prima faoie valid. There is nothing in the record to overthrow this prima faoie evidence, and therefore the judgment will have to be reversed, and the case remanded for a new trial.
We understand the. same question exists in the succeeding case of Guthrie v. Douglass, and the same judgment will be entered in that case.
Kingman, C. J., concurring.
[*No opinion was filed on the overruling of the motion for rehearing. The case as originally decided in this court, is reported in 14 Kas. 293. — Reporter.] | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action for damages for physical injuries. The petition alleged, that plaintiff was driving his team on a traveled road which led by the railroad track and depot of defendant, that his team was frightened by the whistle and escape of steam from a locomotive at the depot, upset his wagon, and thereby caused him great physical injury. His petition showed that there was no negligence or want of care on his part. The allegations showing negligence on the part of the defendant are as follows:
“ That there was then, and for thirty minutes theretofore had been, standing on the track of defendant’s said railroad a train of defendant’s cars, with a locomotive-engine attached to the north end thereof for the purpose of propelling the same, which said engine was then in charge and under the control of defendant’s engineers, firemen, and servants, and was then standing still, but under full steam generated by fire; that when the plaintiff with his horses hitched to his wagon, and while he was so driving and riding in his wagon on said public road, had come opposite to said engine, and within one hundred feet thereof, the firemen, engineers, and servants of the defendant in charge of said engine, needlessly, carelessly, and with gross negligence, and heedlessly, caused the steam whistle of said engine to be suddenly and violently blown with useless, unusual, startling and terrifying noise and screeches, and at the same time heedlessly, carelessly and unnecessarily caused to be suddenly opened for the escape of steam the safety-valve on said engine, thereby the emission of steam therefrom making a sudden, violent and startling noise, and at the same time heedlessly, carelessly and unnecessarily, and with gross negligence, caused the steam to be let into the cylinder while the cylinder cocks were open, thereby causing sudden, violent, useless, startling, and hissing noises to be made by the escape of steam from said cylinder, and that the said defendants by their said misconduct, and by their said gross carelessness, greatly frightened the said horses of this plaintiff so that they became unmanageable,” etc.
• A demurrer to this petition was sustained, and this ruling is the error alleged. It cannot be questioned that defendant’s train was rightfully on its track, and that the blowing of a whistle, and the letting off of steam with its attendant noise, are not per se acts of negligence, or evidence of wrongful conduct. It is also equally clear, that plaintiff was rightfully on the public road, and that in driving his team along the ordinarily traveled way he was guilty of no negligence and no wrong. Both parties were therefore rightfully where they were, the one with its train, and the other with his team. Each had a right to the enjoyment and use of its property in the ordinary and reasonable manner in which such property is used and enjoyed. Courts must take knowledge of the fact, that the blowing of a whistle is one of the ordinary signals used in the running of a train, and that in the management of locomotive-engines it is at times necessary to open the valves and permit the escape of steam. But still these acts, which at times are legal and necessary, may be done without any necessity therefor, out of mere heedlessness and negligence, or with a wanton and criminal intent to do wrong. That a party has a right to do a given act at certain times and under certain circumstances, does not prove that the same act is right under all circumstances, and at all times. A man may be guilty of no negligence, and do no wrong in firing a revolver, or he may thereby be guilty of the grossest negligence and cause the most grievous wrong. So in this case, while the defendant might under some circumstances, lawfully, and without subjecting itself to responsibility for injuries resulting therefrom, cause the whistle to be blown, or the valves to be opened and steam .permitted to escape, yet the same acts done without any necessity therefor, done negligently and heedlessly, might render the defendant responsible for all injuries caused thereby. T. W. & W. Rld. Co. vs. Harmon, 47 Ill. 298. Sio wtere tuo wt alienum non Icedas, regulates the conduct, and determines the liability of corporations, as of individuals. Now the petition before us alleges that these acts of the defendant were unnecessarily, carelessly, heedlessly and negligently done. And upon demurrer these allegations must be taken as true. If they are not sufficiently specific and definite, motion, and not demurrer, is the remedy.
We think that the court erred in sustaining the demurrer, and that its ruling must be reversed, and the case remanded with instructions to overrule the demurrer.
Valentine, J., concurring.
Horton, C. J., not sitting in the case. | [
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The opinion of the court was delivered by
Wertz, J.:
This is a habeas corpus proceeding. Norman D. Mortimer, petitioner (appellant), was accused of the crime of manslaughter in the fourth degree (G. S. 1949, 21-420).
The complaint alleged that on the day specified the petitioner unlawfully, feloniously, willfully, and with culpable negligence drove and operated his Chevrolet bus on the public highway and failed to yield the right of way to the vehicle of Louise Shearer; that he drove his vehicle in a reckless manner as to indicate a willful and wanton disregard for the safety of persons and property; and that he failed to keep his vehicle in the proper lane of traffic and drove the Chevrolet bus across the center line to the left side of the highway, striking the automobile driven by Louise Shearer, in which automobile Karen L. Shearer was a passenger, and by reason thereof Karen Shearer received bodily injuries that caused her death.
Upon the filing of the complaint the petitioner was arrested and brought before a justice of the peace for preliminary examination. At the preliminary examination the justice of the peace found that the offense charged had been committed and that there was probable cause to believe the petitioner was guilty of the offense charged. The petitioner was bound over to the district court for trial.
Thereafter the habeas corpus proceeding involved in this appeal was commenced in the district court of Cherokee county. The court, after hearing the application and examining the files, found the petitioner was not unlawfully restrained of his liberty, and remanded petitioner to the custody of the sheriff. From an order overruling petitioner s post trial motions he appeals.
The contention of the petitioner can be reduced to the question of whether or not there was sufficient evidence produced at the preliminary examination to support the finding that a crime had been committed. The essential factual element we are here concerned with involves whether or not the evidence established the elements of the crime, i. e., how and when did Karen L. Shearer, the deceased, receive her fatal injuries.
The evidence in the case reveals that prior to the accident the bus being driven by the petitioner was swerving, that it would gradually go over past the yellow fine to the center, and twice both dual wheels went off the pavement onto the shoulder; that as the bus neared a curve a station wagon, being driven by Mrs. Shearer, was coming around the curve from the opposite direction, in its own lane of traffic, and just as it was making the curve, the bus, traveling at a speed of forty to forty-five miles an hour, instead of negotiating the curve, went straight across and to the op posite side of the highway and struck the station wagon; that the witness John Plurley testified that the parties involved in the accident were the driver of the bus and the lady and girl in the station wagon; that he called an ambulance, then came back to the scene of the accident, and when he returned, the lady was lying on the ground by the station wagon and was asking about her daughter,— "take care of my daughter” — and then he looked into the car and saw her daughter Karen lying on the seat; that he helped load the girl into the ambulance.
Dr. C. B. Smith testified it was his judgment Karen was dead on arrival at the hospital. Examination revealed the right carotid artery had been completely severed, along with the right jugular vein, and that Karen had sustained numerous lacerations, contusions and fractures.
While we concede that here perhaps the best use was not made of the evidence of witnesses undoubtedly available, still it is the opinion of the court that the evidence adduced at the preliminary examination was sufficient to establish that Karen s death resulted by reason of the automobile collision under the conditions as set forth in the complaint.
At the outset it may be stated a preliminary examination is not a trial of a defendant’s guilt; it is rather an inquiry whether the defendant should be held for trial. Its principal purpose is the determination of whether a crime has been committed and whether there is a probability that the defendant committed the crime. Its main object is to apprise the accused of the nature of the crime or crimes charged against him, and to apprise him partially, at least, of the sort of evidence he will have to combat when he is subjected to formal prosecution in the district court. (State v. Robertson, 190 Kan. 771, 378 P. 2d 37; In re Merrifield, 175 Kan. 889, 267 P. 2d 465; State v. Willhite, 161 Kan. 113, 116, 117, 166 P. 2d 562; McIntyre v. Sands, 128 Kan. 521, 278 Pac. 761; King v. McKnight, 120 Kan. 692, 695, 245 Pac. 105.)
There is a difference between the quantum of proof essential to a binding over for trial and that required to convict at the trial. The guilt or innocence of a defendant is not adjudged at a preliminary examination, and it is not necessary that evidence upon which a defendant is held for trial should be sufficient to support a conviction. It is enough if it shows that an offense has been committed and that there is probable cause to believe the defendant is guilty. (State v. Pfeifer, 109 Kan. 232, 233, 198 Pac. 927; In re Danton, 108 Kan. 451, 195 Pac. 981.)
In the case of State v. Powell, 120 Kan. 772, 777, 245 Pac. 128, Justice Burch, in speaking for this court, stated:
“Procedure by preliminary examination takes the place of procedure of grand jury, but corresponds to procedure by grand jury to this extent only: It is a method of determining whether a suspect should be held for trial, and serves to prevent escape of the guilty and detention of the innocent. (State v. Bailey, 32 Kan. 83, 3 Pac. 769.) The two methods of procedure differ in these important respects: Preliminary examination affords, and is designed to afford, general information to the person held to answer respecting what he must meet. It does not definitely fix the form of the charge to which he must plead.”
It must be remembered that these preliminary proceedings are generally had before justices of the peace, officers not learned in the law, and if the same fullness and precision, the same precautions against all the contingencies of the testimony, were required there as in the information or indictment, justice often would be delayed and defeated. (State v. Spaulding, 24 Kan. 1; State v. Rangel, 169 Kan. 194, 196, 217 P. 2d 1063.)
In view of what has been said, the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a proceeding which involves the eligibility of Ethel R. Chadwick (appellee) for unemployment compensation under the provisions of the Kansas Employment Security Law (G. S. 1949, 44-701, et seq., as amended) for the period of March 13, 1962, to May 3, 1962.
The question on appeal is whether the findings of the Employment Security Board of Review are supported by evidence and have a reasonable basis in law.
On January 14, 1962, the appellee filed a claim for unemployment compensation. She last worked for Southwestern Bell Telephone Company at Olathe, Kansas, as a telephone operator or PBX operator, and was placed on pregnancy leave October 15, 1961. Following the birth of her child on December 11, 1961, the claimant first requested transfer from her original office at Olathe to a Parsons, Kansas, local office with the Southwestern Bell Telephone Company, but she could not be accepted at Parsons because other girls with more seniority were on the waiting list for jobs. She moved to Parsons on March 22, 1962, with her husband because he had employment there. On January 21, 1962, she was released as able to work by her doctor. Thereafter she was paid benefits to March 13, 1962. On March 15, 1962, the employer appealed the determination allowing benefits. A hearing was had before a referee on April 25, 1962, and the referee entered a decision holding the claimant ineligible for benefits beginning March 13, 1962, finding that she was not available for work or making reasonable efforts to find work. The Employment Security Board of Review on further appeal adopted the referee’s findings and affirmed the referee. On appeal to the district court judgment was entered reversing the Board of Review, following which appeal was duly perfected to this court.
The referee stated the issue before him to be “whether or not the claimant has been making a reasonable effort to obtain work.” The referee found claimant had since January, 1962, to attempt to obtain employment, but that she made only five attempts to seek employment — she contacted the courthouse and also the Olathe News and various places where PBX operators were used. He found claimant contacted two federal agencies, but in each instance a federal test had to be taken and claimant had not at the date of the hearing taken these tests. The referee thereupon reversed the examiner who allowed claimant compensation. In his decision the referee found claimant was unavailable for work and was not making a reasonable effort to obtain work.
In claimant’s report to the Employment Security Division on March 1,1962, she said the least weekly wage she would accept was $75. (Her weekly wage when last employed was $78.50, which included overtime.) She also remarked she was looking for a “better paying job with day hours.” She restricted the hours she would work from “8 to 5.”
The section of the Employment Security Law pertaining to court review (G. S. 1961 Supp., 44-709 [h]) provides that in proceedings thereunder the findings of the Board as to the facts, if supported by evidence and absent fraud, shall be conclusive and the jurisdiction of the court shall be confined to questions of law.
A recent pronouncement by this court on the subject is found in Pickman v. Weltmer, 191 Kan. 543, 382 P. 2d 298, where it was said:
“. . . under G. S. 1961 Supp., 44-709(h), where a claimant seeks judicial review, findings of fact of the Board of Review are conclusive and may not be set aside by the district court in the absence of fraud where they are supported by evidence, and the jurisdiction of the court is confined to questions of law. (Shumaker v. Kansas State Labor Dept., 154 Kan. 418, 118 P. 2d 550; Craig v. Kansas State Labor Commissioner, 154 Kan. 691, 121 P. 2d 203; Reed v. Warkentin, Commissioner, 185 Kan. 286, 341 P. 2d 980; Clark v. Board of Review Employment Security Division, 187 Kan. 695, 359 P. 2d 856.) Those cases embrace the rule that judicial review must be made in the light most favorable to the findings and holding of the administrative tribunal. (81 C. J. S., Social Security and Public Welfare, § 232, pp. 341-349.)” (p. 547.)
Law applicable to this proceeding is found in G. S. 1961 Supp., 44-705. The pertinent portion reads:
“An unemployed individual shall be eligible to receive benefits with respect to any week only if the commissioner finds that: . . . (c) He is able to work, is available for work, and is making reasonable efforts to obtain work: . . .”
When the Board makes findings pursuant to 44-705, supra, the only function of the district court on judicial review is to determine whether or not there is evidence before the Board which supports the Board’s findings. Only after it makes a specific finding that there was no evidence to support the findings of the Board could the court set them aside. The law expressly limits the jurisdiction of courts to questions of law. And whether there is evidence to sustain the Board’s decision is a question of law.
While a court sitting as a Board of Review might have reached a different conclusion on conflicting evidence, or in determining a preponderance of the evidence, it is, nevertheless, bound to uphold the finding of the Board if there is relevant evidence before the Board to support its findings.
During the period of time in which the appellee was making claim for compensation, from January 21 to May 3, 1962, she made only six efforts to find work. Three of these were made prior to the period in question, which is March 13 to May 3, 1962. The only efforts to secure work during the period in question were in Parsons, Kansas, from March 22 to April 25, 1962; at Montgomery Ward, Sears and a printing company — three efforts in approximately eight weeks. In that same period of time she contacted the Employment Security Division each week to claim benefits.
Furthermore, throughout the entire time she claimed unemployment compensation benefits she restricted her availability to work as a telephone operator, or PBX operator, to a minimum wage of $75 per week, and to-working hours of 8 to 5 daily. These restrictions were never removed.
In order to be entitled to unemployment compensation benefits, a claimant must act in good faith and make an active and reasonable effort to secure suitable work or employment. Mere registration and weekly reporting, without reasonable effort, does not satisfy the statute and does not make the claimant “available” as that word is used in the statute. (See, Hunter v. Miller, 148 Neb. 402, 27 N. W. 2d 638; Department of Industrial Relations v. Tomlinson, 251 Ala. 144, 36 So. 2d 496; Jacobs v. Office Unemployment Etc., 27 Wn. 2d 641, 179 P. 2d 707; and Huiet v. Schwob Manufacturing Co., 196 Ga. 855, 27 S. E. 2d 743.)
A leading case in this jurisdiction on a claimant’s availability for work and reasonable efforts to obtain work is Clark v. Board of Review Employment Security Division, 187 Kan. 695, 359 P. 2d 856, where it was said:
“Although the phrase ‘available for work’ is not susceptible of precise definition, it should be taken in its ordinary and usual sense, and the fulfillment of such requirement found in employment security laws depends largely on the facts and circumstances of the particular case, considered in the light of the purpose of the legislation. Generally speaking, the requirement is satisfied when an unemployed individual is willing, able and ready to accept suitable work or employment which he does not have good cause to refuse — that is, ‘availability’ is a test of one’s current and continued attachment to the labor force, for if one is to be compensated for loss of income under a compulsory contribution system there must be assurance that he is available for work and ready to accept employment. This does not mean, however, that one is ‘available for work,’ within the meaning of the law, if he imposes such restrictions and contingencies upon the conditions of employment as would reasonably preclude his finding work. In other words, the law does not guarantee to anyone a job identical in kind, location, salary and hours with that which he previously held, and one who is willing to accept employment only on his own terms and choosing does not have a genuine attachment to the labor market and cannot be considered as ‘available for work.’” (pp. 698, 699.)
Here the Roard, by adopting the findings o£ fact and decision of the referee, found the claimant unavailable for work and further found she did not make a reasonable effort to obtain work. It therefore concluded she was not entitled to unemployment compensation benefits. These findings are supported by evidence, and, having a basis in law, they are conclusive and binding upon the district court.
The judgment of the lower court is reversed. | [
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The opinion of the court was delivered by
"Valentine, J.:
This was an action brought by the First National Bank of Eldorado, Kansas, against the maker and indorsers of the following promissory note:
“$1,000. Eldorado, Kansas, March 21st, 1874.
“ Six months after date, for value received, I promise to pay to the order of Waitman F. Joseph; the sum of one thousand dollars, at the First National Bank of Eldorado, in Eldorado, Kansas, with interest from maturity at the rate of 12 per cent, per annum. And I further agree to pay a reasonable attorney-fee if suit shall be instituted to enforce the payment hereof.
“No. 3216. Due Sept. 21st 1874. D. J. Lobdell.”
Upon the back of which note was indorsed the names of “Waitman F. Joseph,” and “Henry Comstock, Jr.”
Joseph and Comstock answered separately, each denying under oath that he ever indorsed said promissory note; and Joseph alleging that so far as he was concerned the indorsement was a forgery. The evidence however^ as brought to this court, seems to show, beyond all doubt, that the . signatures indorsed on said note were and are the true and genuine signatures of the said Joseph and Comstock. The evidence however seems to show that said note was indorsed before it was fully filled up, and while it was partially in blank, but asJ;o how much of it was filled up, and how much of it was in blank, the evidence with regard. thereto is conflicting. Some of the evidence tends to show that the dates, the amount, the maker’s name, and the payee’s name, were all in blank, while other parts of the evidence tend to show that not so much of the note was in blank. The amount at least was probably in blank. Joseph and Comstock indorsed said note at the request of Lobdell, and both Joseph and Corn-stock testify that Lobdell agreed that the amount to be put in the note should not exceed $400. But there was other evidence contradicting this, and showing that the note was to be filled up just as it was in fact filled up. This note was executed and indorsed for the purpose of taking up and paying another note for $1,000 then due, and held by the bank against Lobdelband Joseph and a man by the name of Drake; and there was evidence tending to show that Lobdell, who was the principal debtor, and who procured said signatures, told the indorsers at the time they indorsed said note, that if he got certain money which he expected to get, the amount that would be placed in the new note should'not exceed $400, and in any case the amount should not exceed $1,000. The note was in fact filled so as to make the amount just $1,000. The bank was fully aware that the note was ex-ecu£e¿ an¿ indorsed in blank, but it was not aware until long after it purchased and received the note, and until long after all the blanks were completely filled, that any one claimed or believed that the .blanks were not filled up in exact accordance with the expectations and understanding of the indorsers. The note was taken by the bank in good faith as payment for another note of the same amount which the bank held against said Lobdell and S. D. Drake as'makers, and said defendant Joseph as indorser. Now upon the merits of this case we think the plaintiff below should recover. Promissory notes may legally and properly be executed and indorsed in blank. And . knowledge on the part of the payee or holder of the note, that it was so executed and indorsed, will not vitiate the note. All that is necessary in such a case is, that the holder shall be an innocent and bona fide holder of the note for value. He is not bound to know that the blanks were filled up in exact accordance with the expectations or intentions of the maker or indorser. The maker and indorser take the risk, when they make and indorse the note. -.....The note is good in the hands of an innocent purchaser for value, even if it was filled up with an amount greater than that authorized"by the maker or the indorser. (1 Pars. Notes & Bills, Í09 to 113; 1 Daniel on Negotiable Instruments, 111, et seq.) The plaintiff in this case was an innocent and bona fide holder of the note for value. The plaintiff was wholly innocent of any fraud or any wrong that may possibly have been perpetrated on the indorsers. And in consideration for this note the plaintiff gave up and surrendered a valuable security, torwit, another note for the same amount on Drake, and on two of the present defendants, Lobdell and Joseph. This was a sufficient consideration, even if the same should be called a preexisting debt. (1 Parsons on Notes, 219; 1 Daniel on Negotiable Instruments, 145, 146, 620 to 623.) Drake was released, and Lobdell and Joseph got further time, and the note was taken and received in the usual and ordinary course of business, and there was nothing to create the slightest suspicion that the note was not filled up as directed by Joseph and Com-stock. It would now be unjust to the bank to Hold that the note was void; and therefore, upon the merits of the case, we think the bank should recover.
But aside from the merits, are there any technical grounds upon which the judgment of the court below should be reversed ? It is claimed that the court below erred in admitting in evidence a certain letter of Miller & Taylor. Now this evidence does not appear from the record to have z. , . _ been competent. It was the admissions of two> men, not parties to the record, and not appearing to have any authority from any party to the record to make such admissions.. But still the evidence was immaterial; for everything material which the letter tended to prove had already been incontestibly proved or admitted. But whether the evidence was competent or not, or material or not, the defendants cannot complain of its admission by the court below, for they stated no ground upon which they asked to have it excluded. (Simpson v. Kimberlin, 12 Kas. 587; 3 Estee’s Pl. & Forms, 500; 3 "Wait’s Pr. 204, 205.) If the ground for the objection was,, that Miller & Taylor did not have authority from either» of the defendants for writing said letter, and if such, ground had been suggested to the court below, then other and additional evidence might have been introduced showing that Miller & Taylor did have just such authority. This may not "however have been the real ground upon which said objection was made. The objection, so far as 'the record shows, may have been made on the ground that Miller & .Taylor did not write the letter, or that the statements therein contained were in and of themselves irrelevant or incompetent; or it may have been on some other supposable ground. Miller & Taylor were attorneys for the defendants. It is claimed that the court below erred in excluding evidence “ as to what was said by Miller & Taylor with reference to the note in question.” There was certainly no error in this.
The first, second and third instructions of the court to the jury were not excepted to, and hence we cannot review them. (Wyandotte v. Noble, 8 Kas. 444, 447; Norton v. Foster, 12 Kas. 45; Wheeler v. Joy, 15 Kas. 389, 390.) There is no question raised in this court concerning the fourth, fifth, seventh, eighth and ninth instructions. Or at least, they are not mentioned in the briefs of the plaintiffs in error, defendants below.
The sixth instruction is not erroneous. While juries must always receive and weigh the evidence of the witnesses with regard to the genuineness of a disputed signature of one of the parties to the suit, when such a question is presented to them, yet they may also exercise their own judgment concerning the genuineness -of such signature by comparing it with other signatures of the same person already in evidence and known to be genuine. (Macomber v. Scott, 10 Kas. 336.)
■5. Jury may return and ask further instructions. After the jury retired for deliberation a disagreement arose between them, and they were properly returned into court, when the court gave them other and further instructions. Now there is nothing wrong in this in and of itself. (Gen. Stat. 683, § 280.) But it is claimed that the court did not confine itself as strictly as it should have done to the matter in dispute between the members of the jury. We think it did. The court however must in such a case be allowed a little latitude, and be allowed to exercise a little discretion. But it is claimed that the court at this time erred in instructing the jury as follows: “If it is proved to your satisfaction, that the signatures on the back of the note are genuine, the variance between Gossard and Eix is immaterial.” The variance referred to related simply to how much of the note was in blank at the time when it was brought to the bank for negotiation; and we think the variance was wholly immaterial. It was wholly immaterial, with respect to this question, whether Gossard or Eix was correct, or whether either was strictly correct. This subject has already been sufficiently discussed in this opinion. The said instruction was not erroneous, and we do not think that any of the other instructions given at this time were erroneous. • Besides, none of these instructions were excepted to, and no objection was made to their being given.
But it is claimed that the record does not show that the defendants or their counsel were present at the time these instructions were given, and does not show that any notice was given to them, blow if in fact they were not present, and had no notice given to them, then they would undoubtedly have the right to have said instructions reviewed without an exception. It would be error for the court to give instructions under such circumstances until after the parties or their counsel first had notice. (Gen. Stat. 683, §280.) But the record does not show that the defendants and their counsel were absent and that they had no notice. From anything appearing in the record, the defendants and their counsel may have had ample notice, and may have been present at the time the instructions were given. The record is merely silent upon the subject. Now the defendants themselves brought the record to this court, and instead of bringing the entire and complete record, they brought only what is termed “a case made for the supreme court.” Now such a “case made” seldom or never contains all the proceedings of the court below in a case, but contains only so much of such proceedings as is thought necessary to present the errors complained of. (Gen. Stat. 737, §547.) And it always devolves upon the plaintiff in error, the party complaining, the party who makes the case, to see that enough is put into his “case made” to show affirmatively the errors of which he complains. Error is never presumed from mere silence in a record, and certainly not in favor of a plaintiff in error whose record is merely a “case made.” If the defendants were not present, and had no notice when said instructions were given, they should have made their “case made” show that fact affirmatively.
It is also claimed that the verdict is not sustained by sufficient evidence. We think it is; and besides, the record does not show affirmatively that all the evidence has been brought to this court.
The judgment of the court below must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was originally commenced ¡before a justice of the peace. Hannah A. Brown was the, plaintiff, and William Chapin was the defendant. Judgment was rendered in the justice’s court in favor of the plaintiff, and the defendant then took the case to the district court on petition in error. , The judgment of the justice’s court was affirmed in the district court, and the defendant now brings the case to this court. Two principal questions are presented in this court. 1st, Did the justice err in refusing to grant the defendant a change of venue? 2d, Did the plaintiff’s bill of particulars in the justice’s court state facts sufficient to constitute a cause of action ?
I. We think the justice did not err in refusing to grant the defendant a change of venue. Section 78 of the justices act provides that, “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.” (Gen. Stat. 792.) And the next following section provides that when the change is granted “ on the application of the defendant he shall be taxed with the costs which have accrued for issuing subpoenas to witnesses, and service thereon, witness fees, and costs of the justice for transferring the cause to the docket of the other justice.” (Gen. Stat. 793, §79.) Now the defendant in this case did not pay nor offer to pay said costs, nor any costs; and did not confess nor offer to confess a judgment for them, although his attention was called to the matter by the plaintiff.
II. The plaintiff’s bill of particulars commences as follows: “Now comes the said plaintiff and elaims the said defendant is indebted to plaintiff in the sum of $124.30, as follows, to-wit.” Then there is set forth in the bill of particulars a good cause of action in favor of the plaintiff’s son, and against the defendant, for work and labor; ‘but it is not stated how or why the plaintiff is entitled to her son’s wages. The bill of particulars is then signed as follows: “Hannah A. Brown, by Thomas W. Wells her agent.” No objection was made to the plaintiff’s bill of particulars in the justice’s court. No claim was there made that it did not state facts sufficient to constitute a cause of action, or that the plaintiff was not the real party in interest, or that there was a defect of parties plaintiff, or that the bill of particulars was not properly signed. On the contrary, the case was prosecuted and defended as though the bill of particulars was sufficient in every respect. The defendant first moved for a change of venue, and when that was overruled he then appeared at the trial and cross-examined the plaintiff’s witnesses, and never once suggested to the justice that the plaintiff’s bill of particulars was in any respect defective. Indeed, the claim that the bill of particulars was not properly signed is raised for the first time in this court by counsel’s brief. About the only defect in the bill of particulars is, that it does not state why or how the plaintiff is entitled to her son’s wages. ' But it does state that the plaintiff claims “ the said defendant is indebted to plaintiff” for such wages. Under the circumstances of this case we do not think that the district court erred in affirming the judgment of the justice, 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.:
This was an action on three promissory notes, and to foreclose a vendor’s lien on certain real estate, for the purchase of which real estate said promissory notes were given. The facts of the case, stated in brief, are substantially as follows: On May 12th 1871, the plaintiff Carr owned said real estate, and sold the same to the defendant Williams for $1,280, receiving $320 thereof in cash, and the balance in three promissory notes each for $320, and due in one, two, and three years, respectively. Carr gave no deed for the land, but gave a title bond therefor, containing among others the following conditions and stipulations, to-wit:
“Now the condition of this obligation is such, that if the said A. C. Williams shall pay the said notes, and interest thereon, as therein specified and set forth, together with all taxes, both general and special, assessed against the above described lands and premises, then the said Robt. E. Carr will, without delay, execute to the said A. C. Williams, heirs and assigns, a deed of general warranty, conveying to the said A. C. Williams all his right, title and interest in and to the above described tract of land. And the further condition of this obligation is such, that if default shall be made in said payments, or any part thereof, as specified, then and in that case the said A. C. Williams will deliver up peaceable possession of said premises unto the said Robt. E. Carr, his heirs or assigns, and relinquish all right or claim in law or equity to all and singular the sum or sums of money that may have been paid by the said A. C. Williams, which sums he agrees to forfeit as liquidated damages for the use and occupation of said lands and premises.
“And the further condition of this obligation is such, that if default be made in the payments above specified, and the said Robt. E. Carr shall elect to pursue his remedy in law or equity for the enforcement of said payments, then and in that case the said A. C. "Williams hereby waives all benefit or advantage of the provisions of an act entitled ‘an act to provide for the redemption of real estate sold under execution, order of sale, or other final process;’ approved June 4th 1861.
“And the further condition of this obligation is such, that the said A. C. Williams shall not cut down or carry away, nor shall he allow to be cut down or carried away, any growing timber on said premises, other than what may be necessary for the improvements on said premises, and for the individual use of said party for fuel, nor shall he do or allow to be done any act of waste upon said premises; otherwise, this obligation shall be void and of no effect.”
Afterward Williams sold said land to the defendant Stanton for the contract-price of $1,680, receiving in cash $720, and Stanton was to pay said three promissory notes to the plaintiff Carr. But neither Stanton nor Williams ever paid said promissory notes, nor said taxes. Therefore, after said promissory notes had all become due, and after three years’ taxes had accrued against said land, and the land had been sold therefor, the plaintiff Carr commenced this action, and asked for a judgment against Williams for the amount of said notes and costs, and that said land be sold to satisfy said judgment and taxes, and that Williams’ and Stanton’s interests in said land be barred and foreclosed. The defendants answered setting forth —
“ That the notes sued on in this action were given for purchase-money on the said land set out in said petition, and that in the month of January 1874, said Williams made an agreement with Abrams & Harris,.a firm doing business as commission agents in the city of Lawrence, and who were then and there the duly-authorized agents of said plaintiff, by which it was agreed between said plaintiff and said Williams, that said Stanton and Williams should surrender the title and title-papers to said land, and that the notes and mortgage set out in said petition should be surrendered to said Williams, and these defendants allege that said surrender was to be made within three weeks thereafter; and these defend ants allege that they complied with said agreement, and offered and tendered the surrender of said title and title-papers within said three weeks to said plaintiff, and that said plaintiff neglected and refused to surrender or deliver up said notes and mortgage; wherefore these defendants ask that said plaintiff be compelled to surrender up and cancel said notes and mortgage.”
The plaintiff replied to this answer as follows:
“The plaintiff admits the making of the agreement in said answer alleged, with the explanation that the title to be so surrendered was expressly agreed to be a title free from any tax lien created by the non-payment of the taxes stipulated to be paid by said A. C. Williams. And plaintiff denies that the said defendants offered and tendered the surrender of such title and title-papers within three weeks, or at any other time after the making of the agreement in said answer alleged, but on the contrary, says, that defendants, or one of them, had incumbered the title to the premises by allowing the same to be sold, on or about the 10th of May 1872, for the taxes levied thereon for the year 1871, amounting to $55.80, and on or about the 18th December 1872, for the taxes of the year 1872, levied thereon, amounting to $38.69, and on or about the 10th day of November 1873, for the taxes levied thereon for the year 1873, amounting to $37.14, and never discharged said liens and incumbrances so as to be able to give title to said premises at any time previous to the commencement of this suit.”
On 24th February 1875, this case came on regularly for trial before the court and a jury. Counsel appeared for each party. It was then admitted that the statement of unpaid taxes in the replication, was correct. Defendant then opened, and called the following witnesses, who testified as follows:
“A. C. Williams: I am one of the defendants in this action. I have known Abrams & Harris for five or six years. I made my original contract for purchase of the land with Abrams. Some time afterward I sold Stanton, my co-defendant, the land, and informed Harris of the sale having been made. In January 1874,1 met Abrams in Lawrence. He spoke to me about the non-payment of the first and second notes. I told him I did-not think Stanton could pay the notes, and that I would like to get up and surrender the bond. He said if it was done within three weeks from that time he would sur render the notes. I soon after met Stanton and paid him $250 to get the bond. This was about a week after the conversation with Abrams.”
On cross-examination, witness said; “Stanton paid me fifty cents on the acre more than I paid Mr. Carr for the land, that is, in all, $400. The land has never been fenced or cultivated. In January 1874,1 met Abrams in Lawrence. He said to me that Stanton was not meeting those notes. Two were then dishonored, one note not then due. I said, Stanton could not pay, as his circumstances had altered since he bought the'land from me. He had lost his place. I then asked him if he would return the notes if I would give up the land and surrender the bond. He said he would, if I would return the bond within three weeks. I knew nothing about taxes at that time; I did not know whether they w;ere paid or not. Abrams rode with me on the cars to Tonganoxie, and asked me if the taxes had been paid. At that time I did not know, and so told him. I told Stanton when I next saw him what had taken place; agreed to divide the loss of what he had paid me. The extra $50 was for the use of the money; that is, the difference between $250 which I paid him, and half of the $400 which he originally paid me. I have no further personal knowledge of the matter. I never knew the negotiation had failed until after the suit had been commenced. I went to the Indian nation soon after my conversation with Abrams, and was absent for a considerable time.”
“James Stanton: About January 24th 1874, I held the title-bond to the land in question. "Williams then proposed we would surrender the bond and get the notes for the purchase-money. I soon after went to Abrams & Harris’ office in Lawrence; I saw Harris, and told him my business. He said he had not the notes there, but would send for them, and I might leave the bond. I said I would keep the bond, and surrender it when I heard from him that the notes were come. The subject of taxes was first mentioned to me by Mr. Harris after service of the summons in this case.”
On cross-examination, witness said: “This occurred somewhere'from January 20th to January 24th. Williams saw me and asked me, could I pay for the land? I said ‘I could not.’ He then asked me, would I surrender the bond? I said, ‘ Yes, I would.’ He then asked how much I wanted to do so? No precise amount was then agreed upon. We agreed to divide the loss, which was about $200 or $300; the exact amount I don’t know. I went to Lawrence to see Abrams & Harris. I saw Mr. Harris, and told him my business. I said.I had brought the title-bond to surrender in order to get Williams’ notes. Harris said the notes were in St. Louis; said I could leave the bond with him and come and get the notes when they came. I thought I had better keep the bond. He said he would write me a note as soon as he got the notes. He asked me to hold on to the land, and he would extend the time for payment of the purchase-money. I told him I was unable to complete the purchase, any way. Nothing was said about taxes. I knew I had to pay the taxes according to the terms of the bond. I said nothing to Harris about any taxes being then due; the subject was not mentioned. This interview was in January. Service of summons in this case was made on me in the summer; I suppose it was in June. I heard nothing whatever of the matter during the intervening six months. I think he figured up what interest, taxes and back payments would be, if I kept the bond. I wanted to find what it would cost to do so. I don’t know whether he had the amount of the notes or not; I am not positive whether he had the amount of the taxes or not.”
On re-examination, he said: “A note of mine which was held by Williams was satisfied in part by the $260 he agreed to give me back; I don’t know whether I have destroyed that note or not.”
The above was all the evidence adduced on behalf of the defendants, and they then rested their case. Plaintiff then demurred to the evidence adduced by the defendant, on the grounds that it did not show any facts constituting a defense to the action, and moved for judgment. The court overruled the demurrer and motion, and plaintiff excepted.
The plaintiff then introduced the testimony of the witnesses Harris and Abrams, which testimony shows that, no written contract such as stated in the defendants’ answer was ever made, and further shows that if any contract similar to that was ever made it was a parol contract, and such a contract as is set foi’th in the plaintiff’s replication. This is all the evidence that was introduced on the trial. The court then instructed the juiy that it was not necessary that the contract set up in the defendants’ answer should be in writing, to which instruction the plaintiff excepted. The jury then found a verdict in favor of the defendants, and against the plaintiff.
We think it will be seen from the foregoing statement of the facts, that the only questions involved in this case are, whether a valid contract was made between the plaintiff and the defendants, and whether the defendants performed or offered to perform the contract on their part. Now we must assume that the contract admitted in the plaintiff’s reply was a valid contract. That is, we must assume that the contract, “that said Stanton and Williams should surrender the title and title-papers to said land, [to Carr,] and that the notes and mortgage set out in said petition should be surrendered to said Williams,” (see defendants’ answer,) and “that the title to be so surrendered was expressly agreed to be a title free from any tax-lien created by the nonpayment of the taxes stipulated to be paid by said A. C. Williams,” (see plaintiff’s reply,) was a valid contract. But the defendants never performed or offered to perform this contract. They never offered to surrender the title freed from taxes, or tax-liens. They never even offered to surrender back as good a title as they received from Carr. They received their title from Carr, free and clear from all taxes and tax-liens. But if they ever offered to surrender any title back to Carr, which may be questioned, it was a title incumbered with taxes and tax-liens. It was admitted on the trial, and also proved, that they never paid any of the taxes on said land, and that the land was sold for such taxes, and there was no evidence introduced tending to show the contrary. The defendants therefore cannot defeat the plaintiff’s action under the contract admitted by the plaintiff in his reply.
If the defendants can defeat the plaintiff’s action at all, it must be under the contract set up in the defendants’ answer. And e'ven under that contract, if it may be construed to be the same as is admitted in the plaintiff’s reply, they cannot defeat the plaintiff’s action. But probably it may be construed differently, as follows: They allege in their answer that they were to “surrender the title and title-papers to said land.” Now it may be that they did not intend to surrender such a title as they received from Carr — a full equitable title, unincumbered by taxes and tax-liens, as alleged by the plaintiff’s replication — but just such a title as they then had. Assuming that this is what they meant, we shall now proceed to consider whether they made out a defense upon this assumption. At the time that this supposed contract was made the legal title to the property was in Carr, and the equitable title thereto was in Stanton. Stanton then had the title-papers given to Williams. The equitable title had passed from Carr to Williams, and from Williams to Stanton. By this contract the equitable title (or so much of it as was left, considering its subserviency to said taxes and tax-liens,) was in some manner to pass back to Carr, whether directly from Stanton to Carr, or indirectly, from Stanton .to Williams and from Williams to Carr, the defendants have not informed us. But in whatever manner the title was to pass, the contract therefor was wholly executory. The contract was made by Carr through his agents, Abrams & Harris, on the one side, and by Williams on the other side, and was afterward ratified by Stanton • but no part of the contract was ever reduced to writing, and no part of the 'same was ever executed. No title, or title-paper, or possession, was ever surrendered by the defendants, nor did the plaintiff surrender his notes, or vendor’s lien. All parties continued to retain just what each had, respectively, before the contract was made. We shall assume for the purposes of this case, that the defendants offered to perform on their part, though this under the evidence may be questioned. The only question then left is, • whether said parol executory contract is valid or not. We must answer this question in the negative. The contract is void under the statute of frauds. (Gen. Stat. 505, §§ 5, 6.) To have made it valid, it should either have been reduced to writing, or should have been executed. In reply to a suggestion made by the defendants, we would say, that the title-bond does not provide that in case of a default the interest of "Williams and his 'heirs and assigns shall cease. Nor does it give to Williams or to his heirs or assigns any power to terminate said contract. And we hardly think it even gives to Carr any such power. But even if it does give to Carr any such power, he has never in fact exercised it. The defendants do not rely upon any actual termination of their original contract. But they rely merely upon a subsequent executory contract, providing by its terms that the parties should thereafter within three weeks, and upon certain conditions, terminate such original contract. Now where is the consideration for this executory contract ? ■ If Carr had the absolute right at his own option to terminate said original contract, then where was the new consideration going to Carr to sustain an executory contract compelling him to terminate said original contract? If however Carr had no such right to terminate said original contract at his own option, and if therefore the defendants’ promise to surrender their equitable title, and the title-papers to said land, is a sufficient consideration for the plain tiff’s promise to surrender the notes, and to terminate said original contract, then this new contract is an executory parol contract for the sale and transfer of an interest in land, and is therefore void under the statute of frauds.
Before closing this opinion we might say that the title-bond itself gives to Carr the right to “ elect to pursue his remedy in law or equity for the enforcement of'said payment” of said promissory notes. And he is now pursuing just such a remedy.
The judgment of the court below will be reversed, and cause remanded to the court below for a new trial.
Brewer, J., concurring.
Horton, C. J., not sitting in the case. | [
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The opinion of the court was delivered by
Valentine, J.:
The defendant in error raises the question, that a certain portion of the transcript filed in this case, and claimed to be a bill of exceptions, is not a bill of exceptions, and is not part of the record of the case> qq,e p]ajn£jfps error make no reply thereto. Said supposed bill of exceptions commences with the words, “Be it remembered,” etc., and then includes various proceedings of the court below, and rulings to which the plaintiffs in error, defendants below, excepted, and then concludes with the following words: “The defendants therefore ask that this their bill of exceptions may be signed by the judge and made a part of the record in this case, which is accordingly done.” Then immediately following these words, and on the same piece of paper, comes a certificate, purporting to be a certificate of the judge and signed by the judge, certifying to the correctness of the matters and things previously set forth in the foregoing paper. The judge does not in his certificate call the paper a bill of exceptions, nor does he in said certificate order that it be made a part of the record. But still, as he knew what it was intended for, and approved it and signed it, we think , it should be considered as a bill of exceptions, and as a part of the record in the case. Considering it then as a part of the record, does the record show any error in this case? In considering this question we shall follow the brief of plaintiffs in error.
We perceive no substantial error in the first instruction given by the court to the jury; and the plaintiffs in error have not pointed out to us where or how it could possibly prejudice their substantial rights.
We do not think the court erred by giving the second instruction to the jury. It reads as follows: “Interest cannot be claimed on an open and running mutual ac-1 ° count except by an agreement of parties. It would be strange if each item of an open, running, long-continued, mutula account should separately and on each side draw interest from the earliest inception of each respectively until paid. It would even be strange if the ever-varying balances due on such an account should draw interest without any agreement therefor. We do not think that the statute provides for any such interest. The statute, (Laws of 1871, page 250,) does provide however, that “money due on settlement of accounts from the day of liquidating the same and ascertaining the balance,” shall draw interest. And the statute also provides, that “money due and withheld by an unreasonable and vexatious delay of payment or settlement of accounts,” shall draw interest. But the statute nowhere provides that where there has been no settlement, and no delay of settlement by either party, and the account is mutual, and still open and running, that the various items, or ever-varying balances on either side, shall draw interest. The plaintiffs in error claimed $26 as interest; and the judgment of the court below could easily be modified to that extent, if we thought the foregoing instruction erroneous; but we do not think that it is erroneous.
It was not error for the court to exclude certain evidence which was attempted to be introduced for the purpose of proving the value of certain land, and which merely tended to prove that ’ two certain men at a previous time appraised said land at a certain amount. Said evidence was not the best that could be procured, and was in its nature, hearsay. Better evidence was in fact introduced on the trial.
We think there was no error in “ refusing to give other instructions asked for by the plaintiffs in error.” There was only one instruction refused, and we think that all that was proper to be given was substantially given in other instructions.
The judgment of the court below will be affirmed.
All the Justices concui’ring. | [
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The opinion of the court-was delivered by
Brewer, J.:
The plaintiffs in error moved the district court of Labette county to set-off one judgment against another. The court overruled the motion, and this ruling is now presented for review. The facts are these: The Laflin & Rand Powder Company sued Miller. In that action an attachment was issued, and plaintiffs in error went on the bond as sureties. The attachment was dissolved, and Miller brought suit on the bond against plaintiffs in error for damages. Both actions stood for trial at the same term. The first-named case was tried first, and judgment entered, and thereafter, and before the verdict in the second was returned, this assignment was filed, to-wit:
“For the purpose of indemnifying Sylvester P. Herman ■and "W. J. Herman, the defendants in the case now pending in this court wherein Vm. Miller is plaintiff and said parties are defendants, the plaintiffs herein hereby assign to Sylvester P. Herman and W. J. Herman the proceeds in the above-entitled cause. June 15th,, 1875.
“Laelin & Rand Powder Co., Plaintiffs,
By True & Madaris, their AttorneysT
In reference to this, one of the attorneys testified that he was instructed by the plaintiffs to make this assignment to the Hermans “to indemnify them against any loss in this case,” that is, the one in which Miller sued them. And again: “I assigned because Miller was worthless, and I could not collect the Laflin & Rand Powder Co. judgment against him.” And again: “The company assigned to the defendants the judgment they recovered against Miller in that action to indemnify them in this action, and enable them to meet and satisfy whatever damages Miller might recover in this action by an equal amount of Miller’s indebtedness to the company for whom the defendants signed the bond on which this action is based.” After the verdict was returned in the second suit Miller assigned his verdict and claim to his attorneys for fees.
Should the ruling of the district court be reversed, and a set-off ordered? We think not. While courts have the unquestioned power to off-set judgments upon motion, yet the exercise of that power is in some degree discretionary, and it will not be exercised in cases in which it would be inequitable so to do. Taylor v. Williams, 14 Wis. 155; Burns v. Thornburgh, 3 Watts, 78; Simson v. Hart, 14 Johns. 63; Zogbaum v. Parker, 55 N. Y. 120; Waterman on Set-Off, § 342; Simpson v. Lamb, 40 Eng. L. & E. 59. In the case from 3 Watts, the court says, that “the power to set one judgment off against another is an inherent one, and the only equitable power which the common-law courts originally possessed. Not being conferred by the statute, it is not a legal power, nor its exercise demandable of right; and being discretionary, the propriety of its exercise cannot be questioned here, where we are incompetent to judge of the circumstances.” And in the case in Johnson’s Reports, it was decided that “a court of law allows set-offs of judgments ex gratia, but a party applying to a court of equity is entitled to it as a matter of right.” It is apparent from the facts of this case that the court in the above quotation was comparing the remedy by motion with that by bill in equity, and that it meant thereby that while the granting or refusing a motion to set-off judgments was a matter of discretion, and not reviewable, yet when the same relief was sought by bill in equity it was not a matter of discretion, but the court was bound to determine the rights of parties according to the established principles of equity. Even in such cases, therefore, no set-off would be decreed unless it were equitable to do so. See also Dunkin v. Vandenburgh, 1 Paige, 622, in which the chancellor holds, that, “The power of the court of chancery to set-off one judgment against another on motion is the same as that of the common-law courts. It is only on bill filed that its jurisdiction is more extensive.” And see Brown v. Warren, 43 New Hamp. 430; Camp v. Paige, Adm’r, 40 Ga. 45; Bickman v. Manlove, 18 Cal. 388; Collett v. Jones, 7 B. Mon. 586; Duff v. Wells, 7 Heisk. (Tenn.) 17. It appears in the case from 18 Cal. that one W. recovered a judgment against Bickman; that execution was issued thereon, and placed in the hands of Manlove, the sheriff, who levied upon certain exempt property belonging to Bickman, and sold it. The latter sued the sheriff for the value of this property and recovered a judgment therefor. W. assigned his judgment to the sheriff, and the latter moved to set-off one judgment against the other. The court held that this could not be done; that it would be unjust, and practically an evasion of the exemption law. Similar views were expressed in the cases cited from Kentucky and Tennessee. In the latter, the court says, that “The statute of this state, and the general rule, that judgments of the same courts may be set-off against each other are applicable only to such judgments as are founded upon matters ex contractu.” But contra • to the views of these last cases, see Temple v. Scott, 3 Minn. 419. We do not understand the law to be as stated in some of the above quotations, that the granting or refusing of a motion to off-set judg- . ments is a matter purely ex gratia, and not subject to review, but we-do understand that the determination of such a motion is' to be upon strictly equitable principles, and that the mere existence of mutual judgments, though in the same court, and held by the same right, does not entitle a party as a legal right to an order directing a set-off. In this case it does not appear that it would have been equitable to have set-off one judgment against the other; or rather, as the facts of the attachment are not fully presented in the record, it does not appear that it was not equitable and just to refuse to set them off. An attachment against the defendant Miller was wrongfully issued. How great a wrong this was, does not appear. There may have been a mere technical omission which caused the attachment to be set aside, or it may have been a wanton and gross outrage upon the rights of Miller. Exempt property may have been seized, or some little business he was prosecuting, and in which he was protected by law, deliberately broken up, because of a failure to pay a debt he was actually unable to pay. To hold that a creditor may resort to unjustifiable and illegal means to harass and annoy his debtor, and then successfully use his judgment to prevent any actual reparation for the wrongs done, would be practically to nullify those laws which the wisdom of the legislature has enacted for the benefit of the honest but unfortunate debtors. "We cannot say from anything in the record before us that the district court abused its discretion in refusing to set the one judgment off against the other.
Again, a party must be the absolute and beneficial owner of a judgment before he can have it off-set a judgment against him. It seems fairly questionable whether this assignment was an absolute and unconditional transfer, or made simply to cancel by off-set the judgment in favor of Miller, and intended to be made only to the extent necessary to accomplish that purpose. The assignment was made before Miller had any verdict, and while it was yet uncertain whether he ever would have one, or if he did, what would be its amount. Suppose Miller had recovered nothing, what interest would the Hermans have taken by this assignment in the powder company’s judgment? See upon this point, the cases of Miller v. Gilman, 7 Cow. 468; Turner v. Satterlee, 7 Cow. 480; Aikin v. Satterlee, 1 Paige, 289; Mason v. Knowlson, 1 Hill, 218.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action for damages, brought by Washington D. Woods against David H. Mitchell, for unlawfully removing the plaintiff and his property from a certain building occupied by him as a livery stable. Both parties claimed to be entitled to the possession of the building, and each claimed the same in his own right. The facts of the case, so far as it is necessary to state them, are substantially as follows: The lot upon which the building stood belonged to John A. Halderman. Halderman leased the same to A. T. Kyle & Co. The firm of Kyle & Co. was composed of A. T. Kyle and Nannie E. Woods, the wife of Washington D. Woods. On October 5th 1873, the firm of Kyle & Co., and each member thereof, with the consent, of Halderman, assigned said lease to Mitchell; but by an agreement with Mitchell said firm was to continue to occupy said premises upon certain terms and conditions, which terms and conditions were however never performed. W. D.Woods was the general agent of the firm, did nearly all their business, and was perfectly cognizant of all the foregoing facts. On November 5th 1873, Nannie E. Woods attempted, for and in the name of the firm of Kyle & Co., to sub-lease said premises to her husband, said W. D. Woods. But this was done without the consent or knowledge of either Kyle or Halderman. It was wholly outside of the scope of the co-partnership business; and by the terms of the copartnership organization Mrs. Woods had no authority to transact any business for the copartnership. W. D. Woods and A. T. Kyle were the only persons authorized to transact business for the copartnership. Up to November 14th 1873, W. D. Woods continued to recognize Mitchell’s rights in and to said premises. On December 17th 1873, Mitchell gave notice to said firm and to each member thereof, and to W. D„ Woods, to vacate said premises. On December 22d 1873, Mitchell commenced an action of forcible detainer against the firm and each member thereof, but not against W. D„ Woods, to oust them from the premises. The action terminated in favor of the plaintiff, and against the defendants. W. D. Woods was present at the trial, and was cognizant of all the proceedings. A writ of restitution was then issued to an officer to restore the premises to- Mitchell. The officer and Mitchell then proceeded to execute the writ, and then and for the first time so far as Mitchell knows, W. D. Woods claimed the possession of the property in, his own right. Up to November 5th 1873, W. D. Woods had possession of the property as the agent of Kyle & Co., and Mitchell supposed he still occupied the property in that capacity. The officer, at Mitchell’s instance, then executed the writ by removing all the property found on the premises, and giving to Mitchell the possession of the premises. W. D. Woods then commenced this action against Mitchell for unlawfully removing him and his property from the premises. Now, whatever may have been W. D. Woods’ right to the premises as against his wife or Kyle, or Halderman, or the firm of Kyle & Co., we think it must be conceded that he had no right thereto as against Mitchell. Even if we should consider .the judgment in the forcible detainer case as void, and the lease from Woods’ wife to himself as valid, still, under the agreement between Mitchell and Kyle & Co., (as its condition had previously been broken,) Mitchell was entitled to the possession of the property as against Kyle & Co. and all persons holding under them. In fact, so far as anything is shown in this case, Mitchell was entitled to the possession of the property as against all the world. Now Woods, at most, obtained only the rights of Kyle & Co. by virtue of the lease from his wife to himself;' and he was perfectly cognizant of all the rights of Mitchell. Woods therefore had nothing but the mere naked possession of the property, without right thereto as against Mitchell; and Mitchell had the right thereto, but without the possession. Both claimed the right of possession, and Mitchell believed that his right gave him the right to take possession. But as the writ did not run against Woods, and as Woods was then claiming the property in his own right, and not as agent for Kyle & Co., Mitchell was probably mistaken. It is possible however that this whole claim of Woods was a mere sham and trick. There was no apparent change in the business, and although Woods claims that his wife executed said lease to him on November 5th, 1873, yet he recognized Mitchell’s rights down to November 14th. We think the court below erred in instructing the jury that they might allow Woods damages for injuries to his business and for loss of profits therein. He had no right as against Mitchell to carry on business in that building; and by doing so he committed a wrong upon Mitchell’s rights. Is he" entitled to recover for the loss of the fruits of such wrong? Is he entitled to recover for the loss of the prospective profits of his own intended wrongdoing? Is he entitled to be paid for his own intended wrongdoing? Can he found a right of recovery upon any such intended wrongdoing? And will he recover from the person against whom he intended to commit the wrong? Is he entitled to recover from Mitchell all that he might have made by carrying on a business in violation of Mitchell’s rights? The court below limited the amount that he might recover as follows: "If he resumed business at some other place, and realized profits there in his business, he cannot keep those profits and at the same time recover the full amount he might have been making at the old stand. 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The judgment of the court below must be reversed, and cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Robb, J.:
The ejectment action involved in this appeal was commenced on September 29, 1961, by the late Elisha Scott wherein he claimed ownership of the legal title and right of possession to certain real property, known as 1301 Cleveland, in Wichita, Kansas, by reason of a general warranty deed dated June 13, 1956, from Doctor J. E. Farmer and his wife, Gertrude Farmer. The trial court gave judgment to defendant and plaintiff appeals.
At the time the action was filed on September 29, 1961, both the doctor and Gertrude were deceased. The deed attached to the petition showed the doctor and Gertrude had each reserved a life estate in the property, and the petition alleged Elisha was, therefore, the owner of the indefeasible fee simple title to the real property, was entitled to immediate possession thereof, and had on August 23, 1961, caused notice to vacate to be served on defendant.
Defendant filed his answer and included a cross petition setting forth that Gertrude had died testate on August 11, 1960, and on September 29, 1960, defendant had been appointed acting executor of her estate and is now so acting.
On August 8, 1958, Gertrude executed her last will and testament devising and bequeathing all her property, real and personal, including the property in question. Defendant had no knowledge of the existence of the deed, or the claims of Elisha until September 4, 1961, when the notice to vacate was served upon him. It was further alleged the doctor and Gertrude did not make, sign, or acknowledge Elisha’s warranty deed and the deed was false, fraudulent, and forged, but if this was not true, the deed was not delivered to Elisha during the lifetime of the doctor and Gertrude, making the deed invalid, void, of no force or effect, and as recorded, clouded the title. Further, no consideration ever passed in return for the execution of the deed or any consideration if found, was so grossly inadequate as to constitute fraud and flagrant abuse of a fiduciary and attorney-client relationship. If Gertrude signed the deed, she did not understand the nature and effect thereof and it was not her free and voluntary act and was, therefore, not binding upon her. Due to her age and recent illness Gertrude was incapable of transacting and carrying on business of any kind. Elisha had, without any consideration, intentionally cheated and defrauded Gertrude, and finally, she believed until the day of her death that she had a right to dispose of the property by will. Defendant sought to have the deed cancelled and expunged from the records.
For his reply plaintiff, on March 17, 1962, filed a general denial.
Plaintiff’s evidence, from the testimony of Maxine Owens (now an employee of the Welfare Department in Los Angeles, California), who had formerly been secretary to Benjamin H. Brown and Theo. R. Gardner, Wichita, attorneys, was that she had performed legal services for Elisha when he came to Wichita from Topeka. She had been to the residence of the doctor and Gertrude several times because Elisha had performed legal services for the Farmers. On June 12 or 13, 1956, she had been called to cancel the power of attorney previously given to Jeanette Jackson. The doctor and Gertrude executed a power of attorney to Elisha which document was typed and notarized by Maxine after Elisha explained to the Farmers that he practiced law out of the state and might not always be able to come. The doctor stated that Elisha had been such a faithful friend through the years, that they had never been able to repay him for his services, and they wanted to execute the deed to him even though Elisha told them that was not necessary and objected thereto because he was a Topeka resident, well established, and had done things for them out of friendship. However, the doctor insisted and Maxine wrote down the statements at the doctor’s direction. She went to her office and typed the form of the deed but forgot to include the clause for reservation of life estates for both the Farmers. The doctor said this would never do and she was directed to type the reservation in the deed, which she did. The doctor and Gertrude signed the deed and Maxine acknowledged their signatures. Maxine stated that both the doctor and Gertrude were competent or she would not have notarized their signatures because she would not notarize the signature of any person she thought was incompetent. There was further conversation regarding an automobile but Elisha refused either to take the automobile or sell it. The doctor wanted the deed recorded immediately and had so stated after its execution, but he finally gave the deed to Elisha. Three or four days had expired between the execution of the power of attorney and the execution of the deed. The first that Maxine had heard about the deed was at the time the first power of attorney was cancelled. Ted Gardner also was present when the original deed was discussed but he was not present when the corrected deed was brought back.
Morgan Smith, a neighbor, had been told by the doctor he would not mind seeing Elisha have the home, and Smith testified that on the date of the execution of the deed, both the doctor and Gertrude were competent. They were both very curt and had command of things. Smith knew Elisha from seeing him at the doctor’s home many different times and the doctor always referred to Elisha as, “That’s my boy.” Smith brought Gertrude home from the hospital in November, 1955, but he did not know “what her ailment” was.
Theodore R. Gardner, an attorney, knew and had also represented the doctor and Gertrude. He knew they were both astute business people who held extensive real estate holdings ranging from seventeen to twenty-five pieces of property. Gertrude was intelligent and had taught school for several years. Gardner had taken Elisha to the doctor’s home on the evening in question and after it was signed and notarized, he saw the warranty deed but it did not contain the reservation of life estates. The Farmers handed the deed to Elisha. Elisha said there was no hurry about recording but the doctor requested Gardner to take him (the doctor) to record the deed. However, due to the late hour and the fact the court house was closed, Elisha said to wait and he just put the deed into his pocket. At the time Gardner saw the deed he saw one “x” on it and the clause reserving the life estates did not appear thereon.
Gardner further testified he had taken Elisha to the doctor’s home on his way to his own home. Gardner had met the doctor and Elisha at the same time in 1937 or 1938 on the occasion of a Masonic meeting in Kansas City, Kansas. He knew the doctor and Gertrude were rational and normal in every way on this occasion. He knew the doctor was a “reserved personality and pretty strong-willed” while Gertrude was an “intelligent type of person” and no one could put anything over on her very easily. She had carefully read the deed before signing it.
Jeanette Jackson, who had originally had power of attorney for Gertrude, was a defense witness. She testified Gertrude did not have any mental impairment that prevented her from knowing what she was doing and although she had had a stroke it had only affected her speech, which later became better. They drove around in Gertrude’s Cadillac and collected rents and paid utility bills. Jeanette did the driving because Gertrude could not drive.
There was evidence of some conversations about the Cadillac but we are not concerned with that herein.
Myrtle Rell, a defense witness, testified Gertrude had suffered a little illness but she was competent, her mind was good, and she was able to transact business and was aware of things around her.
Jenny McClain (also spelled McLain and McLaine), another defense witness, testified she had accompanied Gertrude to defendant’s office on one occasion after Jeanette Jackson had objected to Gertrude selling her Cadillac. Gertrude asked defendant for a lawyer and he referred her to Mr. Garrett. Jenny testified on cross-examination that Gertrude had a speech impairment but she was around her so much she could understand what Gertrude said, Gertrude’s mind was not impaired as a result of the speech impairment but somebody could take advantage of Gertrude. Jenny knew Elisha and that he was to take over Jeanette Jackson’s power of attorney. She was with Gertrude almost every day from 1956 until Gertrude’s death. Jenny was not related either to the doctor or Gertrude but was a devisee under Gertrude’s will. None of the devisees under Gertrude’s will was related to Gertrude by blood.
Defendant had known the doctor and Gertrude since 1950 and had made Gertrude’s tax returns every year and he saw her every year except 1956 when she had someone else bring in the information for her return. He was not certain whether it was Jeanette Jackson or Louise Thompson. On September 27, 1956, the doctor and Gertrude had come to defendant’s office accompanied by Jenny McClain and Lennie Cunningham. The doctor and Gertrude had told him that Elisha had taken some papers, including deeds and abstracts, and they wanted him to “help them get them back.” They wanted to employ an attorney. Defendant took the Farmers to Mr. Garrett’s office. Defendant further testified that according to the information he had of her records, Gertrude had never paid Elisha on any statements. Defendant knew of many real estate transactions conducted by the doctor and Gertrude. After her stroke in 1956 there was a noticeable difference in her condition in that she was more feeble, showed signs of having had an illness, and was slower thinking. She also had a speech defect.
Defendant had on two occasions after September, 1956, tried to help the doctor and Gertrude plan their wills. Gertrude had attended the Logopedics Institute in Wichita for her speech defect.
Counsel then asked defendant the following:
“Q. . . . they were incompetent when they signed the deed, but competent when they executed the will, is that it?
“A. That was over a long period; there would have been other medical aid given to them, to Mrs. Farmer in the meantime.”
Defendant had worked with Gertrude on her will over a long period of time. Three or four different wills had been drawn before she signed the one in question.
Lennie Cunningham, the next defense witness and the principal devisee in Gertrude’s will, testified that when Jenny McClain moved into Gertrude’s home, Gertrude told Jenny she had decided to give the home to Lennie, but in her will she left it to Louise Thompson. Lennie further testified she did not know what they called “mentally incompetent” but Gertrude just did not get things like she had before she got sick and they would have to go over and over things before she would understand. Lennie testified Gertrude was upset when some papers were gone from a chest in her upstairs bedroom and the doctor was upset over Elisha’s failing to deposit the proceeds of a check received for the sale of the Cadillac.
However, the record shows the proceeds of the check were later deposited by Elisha and that he turned over to Mr. Garrett some sacks full of deeds, mortgages, and abstracts.
Louise Thompson, another defense witness, testified that Elisha and Jenny McClain came to her house in the summer of 1956 and told her Elisha had come to Wichita to write a will for Gertrude and he wanted information from her regarding Gertrude’s properties, transactions, business dealings, and income. When she was asked about Gertrude’s competency, Louise said, “. . . competency is something that is rather relative . . .,” that Gertrude had to have help with her speech and in calling people’s names, but she knew what she wanted to do and if that was competency, she would say Gertrude was mentally competent.
The last defense witness, Lee Garrett, a Wichita attorney, testified that on September 27, 1956, the doctor, Gertrude, Lennie Cun ningham, and Jenny McClain came to his office. They had been brought there by defendant. The doctor did most of the talking and explained to Mr. Garrett that a quantity of papers had been taken from their home by Elisha and they wanted Mr. Garrett to take steps to secure their return. The doctor told Garrett he would have to watch Elisha because he was “very slick.” Mr. Garrett came to Topeka and obtained the three sacks of papers and documents from Elisha after Elisha’s secretary had made a list thereof and Garrett had signed the list. Mr. Garrett asked Elisha if that was all the papers, documents, and instruments of any kind in Elisha’s possession that belonged either to the doctor or to Gertrude, and Elisha assured him it was. Garrett then requested Elisha to submit a bill for his services, but he never heard from Elisha. The three sacks of documents were taken to the home of the doctor and Gertrude and turned over to them.
In October, 1957, just before die doctor’s death on October 31, 1957, Mr. Garrett discussed drawing a will for the doctor and Gertrude. He asked the doctor what his wishes were and he said they were whatever Gertrude wanted. Mr. Garrett handled the administration of the doctor’s intestate estate. On April 10, 1958, he mailed a rough draft of a will to Gertrude for her to read and think about and see if it met with her approval. At first she wanted to leave the home and furnishings to the church as a parsonage because the minister was her good friend. However, she found that the minister’s successors would live in the home and this she did not want. There were nice antique furnishings in the home and she left it and the contents to Louise Thompson, a long time friend, who could appreciate them. On August 8, 1958, Gertrude, as sole owner of the property, executed the will in Garrett’s office.
Garrett further testified that on September 27,1956, Gertrude was not capable of understanding a transaction unless it was explained to her in considerable detail and she was in the same condition on November 14,1956, when she affixed her signature to a letter written by Garrett to Elisha. Garrett testified that in June, 1956, Gertrude was physically and mentally incapable of understanding anything of a legal nature unless it was explained to her “very, very, very thoroughly” and even then he could not tell whether she understood or not. Gertrude had never told Garrett that Lennie Cunningham was to have the home property any more than she had told him she had deeded it to Elisha. She had told him she had given a power of attornéy to Elisha and she thought Elisha had drawn a will for her and these two facts perturbed her. Garrett told Gertrude that any power of attorney she had given would expire upon her death and any previous will would become ineffective by her later will.
In rebuttal testimony, Elisha, who had known Gertrude when she had taught school in Topeka before she married the doctor, undertook to explain about the three sacks of documents but the trial court sustained an objection of defendant’s attorney thereto because it involved a transaction with a deceased person, and Elisha was able to state only that he knew what had happened to the deeds and abstracts, which had been located in a box in an upstairs bedroom of the Farmers’ home, and that the papers he gave Mr. Garrett were those instruments. The court limited Elisha’s further testimony to answering the question — “Did you surreptitiously take these papers out of this box upstairs?” To which question Elisha answered, “Positively not.” After much colloquy between the court and counsel, Elisha’s attorney admitted that the doctor, now deceased, was a party to the deed. Elisha’s attorney suggested there had been a waiver of the rule on the admissibility of evidence and that Elisha’s rebuttal testimony was admissible because although it involved a transaction with a deceased person, defendant’s witnesses had been allowed to testify on the point and Elisha should be allowed to rebut it.
We pause to comment that defendant herein filed a voluminous counter abstract in question and answer form, the major portion of which is repetitious of the record contained in the abstract and this has caused the court an unnecessary amount of work. We wish to caution attorneys against submitting records in this form as this should not be done in appeals before appellate courts. (Rules of Supreme Court No. 6(e), 191 Kan. xv.)
We shall turn first to the paramount issue in this case which is whether Gertrude at the time she executed the deed had sufficient mental capacity to know the nature and terms of the contract. Generally speaking, the infirmities of a contract are required to be proved by the party asserting such infirmities (Jernberg v. Evangelical Lutheran Home for the Aged, 156 Kan. 167, 172, 173, 131 P. 2d 691; Palmer v. The Land & Power Co., 172 Kan. 231, 238, 239 P. 2d 960; 17 C. J. S., Contracts, § 133 [1] e., p. 861; 12 Am. Jur., Contracts, § 144, p. 637) but under the facts and circumstances of this case where a fiduciary relationship of attorney-client existed and the grantors in the deed were clients of the grantee, who was an attorney, the burden is upon the party relying upon the deed to show consideration and to show also the absence of incompetency, mental incapacity, fraud, duress, undue influence or overreaching (12 Am. Jur., Contracts, § 148, p. 641; 7 Am. Jur. 2d, Attorneys at Law, § 97, p. 109) and finally, in 7 C. J. S., Attorney and Client, § 129, p. 971, it is stated that while gifts from clients to attorneys during the fiduciary relationship were absolutely precluded in some of the earlier authorities, most of the modem cases hold a gift is not void ipso facto if it is clearly proved by the attorney that the client acted voluntarily with full knowledge of all the material facts and no undue influence was exercised by the attorney.
In Mann v. Staatz, 156 Kan. 275, 133 P. 2d 103, a mother executed a deed to her younger son on January 4, 1939. The record showed she stated that her mind wandered away, that she was quite prone to forget incidents involving her business affairs, and she had agreed with the family to the appointment of a guardian a few months before she became ninety years of age on March 8, 1939. The evidence (p. 279) was that the day following the execution of the deed, the mother had hallucinations “about chickens being on the bed and about men on the ceiling” and this established the fact the mother had been wholly incompetent to transact business or to execute the deed on the particular day in question. In the opinion it was stated (p. 281) that when the mother’s incompetency was so established, the lawsuit was ended since her incompetency made the instrument without legal effect, and questions of undue influence and lack of adequate consideration were, therefore, immaterial. It is to be noted no such facts or circumstances were established in our present case.
It may readily be perceived from portions of the testimony heretofore set out that plaintiff’s evidence established a prima facie case that Gertrude was competent, she knew what she was doing, and her act in executing the deed was voluntary, independent, and in total disregard of statements made by Elisha that he was a Topeka resident, he owned his home and was well established in Topeka, and the deed was not necessary. He had even objected to their granting power of attorney to him because of his extensive practice of law in many other states which meant he might not always be available when needed. This evidence was well estab lished by the testimony of at least three competent witnesses who at the time of the trial had absolutely no interest in the subject matter or the parties in the lawsuit. Such evidence apparently was in the mind of the trial court when it overruled defendant’s demurrer to plaintiff’s evidence. No appeal was taken therefrom by the defendant and he went forward with his evidence placing the testimony of his witnesses into the record which reflects they did not testify Gertrude was mentally incompetent, but rather, they testified she was well trained by experience in dealing with numerous abstracts, deeds, and mortgages, as well as other matters involved in transfers of real property. It was admitted Gertrude had a physical impairment of her speech and of her muscular co-ordination in writing as a result of the stroke she had suffered in November, 1955, all of which would appear to show the correctness of the trial court’s order overruling the above-mentioned demurrer. (Henks v. Panning, 175 Kan. 424, Syl. ¶ 3, 264 P. 2d 483.) We cannot ignore the evidence of plaintiff’s witnesses Gardner and Owens, who were disinterested parties and the only ones actually present at the time of the transaction, which showed, and such evidence was not disputed, that the Farmers had discussed the matter of the deed between themselves and had agreed on this transaction prior to any knowledge thereof on the part of Elisha, the grantee, or the scrivener, Miss Owens, who was required to make an extra trip to the Farmers’ home to be sure the life estates were reserved to the grantors, as directed by Doctor Farmer. It is inconceivable that Doctor Farmer would take part in such a transaction had he known that Gertrude was mentally incompetent. To say the least, Gertrude had the assistance, and independent advice of her husband, Doctor Farmer, who co-signed the deed with her. Any dissimilarity between her signature on the deed and that of her other signatures was fully and completely explained by witnesses for both parties testifying that after she had had a stroke she had difficulty in writing her name and had attended the Logopedics Institute for correction of defects in her speech and writing. The result is we cannot say that Gertrude did not have independent advice when she and her husband decided to give Elisha their home at the expiration of their life estates therein. (In re Estate of Timken, 177 Kan. 545, 280 P. 2d 561.)
The judgment entered by the trial court finding generally in favor of defendant carries with it a finding in favor of defendant on all material issues involved, and if such findings are supported by competent, substantial testimony, they will not be disturbed on appeal. Therefore, this court must determine the legal principle whether there is any evidence to support a finding of incompetency. In view of this record and all that has been stated herein, we must conclude there was no evidence whatever to show Gertrude was incompetent and obviously the evidence showing she was competent was totally disregarded by the trial court in its general finding and judgment. Thus the trial court’s judgment on this issue alone cannot stand. (Tucker v. Hankey, 173 Kan. 593, 599, 250 P. 2d 784; Grandi v. Thomas, 192 Kan. 741, 391 P. 2d 35, this day decided.)
Plaintiff complains the trial court erred in not allowing Elisha to explain how he came into possession of certain documents which he turned over to Mr. Garrett upon the latter’s visit to Topeka subsequent to letters written by Mr. Garrett demanding the return thereof. We cannot understand why the trial court excluded this rebuttal testimony of Elisha in view of the provisions of G. S. 1949, 60-2804, commonly called the “dead man’s statute,” and our rule enunciated in Briscoe v. Reschke, 170 Kan. 367, 226 P. 2d 255:
“Where the plaintiff in a lawsuit offers testimony consisting of conversations with a deceased person without objection, it is not error to permit the defendant to offer testimony of a like character on the same matters inquired into by the plaintiff.” (Syl. f 2.)
Nevertheless we are of the opinion in this particular instance such erroneous ruling did not prejudice Elisha’s substantial rights.
Contentions in regard to duress, coercion, undue influence, fraud, or overreaching on the part of Elisha have already been fully answered herein since this record shows no evidence from which it may even be inferred that the Farmers looked to or sought any advice or counsel from Elisha with respect either to the power of attorney or the transfer of the real property. Although there may have been power, motive, and opportunity to exercise undue influence or overreaching, this alone is not sufficient to authorize the inference that such were in fact exercised and this is especially true where all the evidence directly bearing on the point clearly established the execution of the deed was the free and voluntary act of the Farmers. (In re Estate of Crawford, 176 Kan. 537, 542, 271 P. 2d 240.)
Turning finally to the question of consideration, aside from the fact the transaction involved a gift, the Farmers apparently considered and determined between themselves that the legal assistance Elisha had given them over the years was sufficient consideration, they executed the deed in question as their free and voluntary act, and in addition, there had to be delivery of the deed to Elisha as he had to have it in his possession in order to be able to record it after the termination of the life estates.
Our conclusion is the trial court erred with respect to all the issues it determined in its general finding and judgment in favor of defendant, and in its order denying plaintiff’s motion for new trial.
Judgment reversed with directions to enter judgment for plaintiff.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by plaintiff below from the trial court’s orders vacating a default judgment, and setting aside a money judgment and allowance of attorney fees, pursuant to G. S. 1949, 60-3007, after the trial court found defendant’s attorney had been attorney of record on August 31, 1962, the date such default judgment was entered.
Following demand therefor, plaintiff commenced this action by reason of defendant’s refusal to pay benefits alleged to be due him under the terms of his policy with the defendant insurance company.
The record discloses that shortly after noon on August 31, 1962, plaintiff and his attorney appeared before the trial court seeking a default judgment. At that time the trial court stated the file showed no answer, no pleadings, no response of any kind from defendant; that it appeared plaintiff’s pleadings were in order but defendant was completely in default of any pleadings whatever, and if there was any error, defendant could come in with a motion to set the judgment aside under the statute. Judgment was entered for plaintiff in the sum of $4,188.59 together with allowance of attorney fees in the amount of $800.00.
Defendant’s attorney filed a motion to set aside the above default judgment on September 7, 1962, and on November 15, 1962, he moved to vacate such judgment, and also filed a petition seeking the same relief. The petition, which set the hearing date as November 23, 1962, was served on plaintiff on November 19, 1962. However, on November 26, 1962, defendant filed an amended petition to vacate the judgment on the same grounds including that defendant’s present attorney was attorney of record on August 31, 1962, that such judgment should be set aside for the mistake, neglect, or omission of the clerk of the district court, that plaintiff had practiced a fraud in obtaining the default judgment because he had had negotiations with defendant’s attorney, and that unavoidable casualty or misfortune had occurred which prevented defendant from defending the lawsuit, and that the default judgment should be vacated.
On December 5, 1962, plaintiff filed a general denial to defendant’s amended petition to vacate judgment. On December 28, 1962, the trial court ordered that defendant’s motions to set aside the default judgment and to vacate judgment should be sustained, and further, that defendant’s amended petition to vacate judgment should be granted.
Here we must pause and consider a jurisdictional matter raised by defendant in this appeal as to whether an appeal lies from an order setting aside a default judgment. Since the early case of Vail v. School District, 86 Kan. 808, 122 Pac. 885, this court has steadfastly adhered to the cardinal rule there stated:
“It must therefore be regarded as settled law in this state that an order setting aside a default judgment and permitting the defendant to answer is not such a final order as can be appealed from while the action is still pending. After final judgment an appeal may bring up such order for review. . . .” (p. 812.)
See, also, G. S. 1949, 60-3302, First; 60-3303; 1 Hatcher’s Kansas Digest, rev. ed., Appeal and Error, §§ 23, 24, p. 96; 2 West’s Kansas Digest, Appeal and Error, § 82 (3), p. 284.
In view of the foregoing authority we conclude the judgments and orders of the trial court herein entered were not final orders, that an action is still pending in the trial court, and the appeal must be dismissed. It is so ordered.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Price, J.:
This is an action for damages arising out of an automobile collision, and the question presented is whether the trial court properly sustained a demurrer to the second amended petition.
The case is a companion to the case of Redmond v. Meier, this day decided and reported at 192 Kan. 730, 391 P. 2d 39. The questions on appeal are the same in the two cases and upon oral argument of this appeal counsel agreed that the decision in the Redmond case would control the decision in this case.
In the Redmond case we hold that the demurrer to the second amended petition was improperly sustained, and our reasons for so holding, as set forth in the opinion in that case, are by reference incorporated herein.
Accordingly, our decision in this case is that the order sustaining the demurrer to the second amended petition was erroneous and the ruling is therefore reversed with directions to overrule the demurrer.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by the claimant in a workmen s compensation case. An award of compensation entered for claimant by the examiner against the respondent and its insurance carrier was reversed by the director and an appeal taken to the district court. This appeal is from the judgment of the district court affirming the order of the director denying the award to claimant as well as from all other findings, rulings, and orders of the court.
Claimant was injured on August 12, 1960, while working with his foreman, Clifton Stout, on a bridge construction job for the McPherson County Highway Department. Claimant and Stout were carrying a water pump weighing about 175 pounds when claimant slipped and fell. He told Stout he had hurt his back. Several days later the two men discussed the condition of claimants back and claimant told Stout that Doctor Dyck, his regular family doctor, thought it was not an injury but an illness. Together the two men decided no accident report should be filed. Claimant had understood from his own reading of respondent’s work rules that report of the accident had to be made to respondent, the county highway department, within seven days. Claimant tried to work from time to time but on September 10, 1960, he had to quit his work entirely because of pain in his back. He went to Doctor Rombold in Wichita in April, 1961. He was unable to work because of a pinched nerve in his back which caused pain across his back and down his leg. He wanted to have surgery on his back to correct his difficulty.
No report of the accident was made until February 5,1962, when claimant, at the suggestion of his attorney, requested Stout, his foreman, to sign an accident report and also that he, claimant, be allowed to file the report.
The parties stipulated that on August 12, 1960, claimant had sustained personal injury by accident arising out of and in the course of employment, that the accident report was mailed by claimant and was filed with the director on February 7, 1962, and that written claim was made on April 3,1962.
In making his award in favor of claimant, the examiner summarized the testimony of the witnesses in pertinent part as follows:
Clifton Stout, a witness for claimant, testified he was employed by the respondent as a foreman. On August 12, 1960, he and claimant were working on a bridge and while they were carrying a pump, claimant slipped and fell. He noticed thereafter that claimant did not work as he had before, he did not walk erect and moved around differently. The reason he had not filed an accident report after the occurrence on August 12, 1960, was that claimant had told him Doctor Dyck had said his illness was not caused by an accident. He had not known claimant had been “doctoring” with Doctor Dyck because of a back difficulty prior to August 12, 1960. The two men agreed no accident report would be filed. After the first of the year in 1962 claimant and his attorney brought an accident report already made out and asked Stout to read it and see if he thought it was correct. He knew this was not the regular procedure because he did not actually prepare accident reports himself. The procedure was that Stout turned the accident in to the shop foreman, or shop clerk, and that person filled out the accident report. However, Stout thought the report was in order and he signed it. He did not mail the report but assumed claimant was going to do so.
Francis Rankin testified lie had been county engineer for respondent since February 1, 1962, and that the procedure of his office concerning compensation reports had been the same as long as he had been in the office. The foreman reported the accident to the shop clerk, who made out a rough draft which was turned in to the county engineer’s office, typed, and then signed by him. He was the only one with authority to file accident reports. The first he knew of claimant’s injury was a letter he received from the compensation director after the accident report had been filed. The accident report had not been cleared through him nor had he given any foreman authority to sign and file reports.
Ruth Raker, a stenographer and bookkeeper for the county engineer, stated she had been so employed on August 12, 1960, but that she had known nothing of claimant’s alleged accident until after the first of the year in 1962. Her testimony on the procedure for filing accident reports was substantially the same as that of the county engineer, as was also the testimony of several other witnesses called by the respondent.
The examiner allowed an award to claimant for temporary total disability, the details of which are not here material. In his findings the examiner stated the chief question was whether the written claim had been made within the statutory period. He held that the provision of G. S. 1961 Supp., 44-557, requiring that where a report of accident has not been filed with the director, claimant must commence his action within one year, applied only when an accident report had never been filed, and he further held that 44-557, requiring the filing of a claim and commencing of an action, was tolled as to claimant until the accident report of February 7, 1962, was filed, and, therefore, his written claim filed on April 3, 1962, was within the statutory period of 180 days.
On review the compensation director on November 20, 1962, found that the accident report was properly filed but that it was filed after the time during which the statute requires the report to be filed. As to the effect of the late filing of the report, the director in his opinion in pertinent part stated:
“The statutes applicable appear to be G. S. 1961 Supp., 44-520a and 44-557. Among other things, said Section 44-520a provides that a claim for compensation must be served upon the employer within 180 days after the accident, or in cases where compensation payments have been suspended, within 180 days after the date of the last payment of compensation. The provisions of 44-520a are modified somewhat by the provisions of 44-557 particularly the last proviso which states that any proceedings for compensation where a report of accident has not been filed, must be commenced before the Director within one year from the date of the accident, suspension of payment of compensation or death of the workman. The Director is of the opinion that the longest period of time during which a claimant may file a claim for compensation is one year following the date of accident or one year following the last payment of compensation, and that this is possible only in those cases where the employer fails to file an accident report as required by said Section 44-557. In making this decision, the Director is not unmindful of the arguments of the Examiner and counsel for claimant, wherein they point out a proviso in said Section 44-557 which states that no limitation of time in this Act provided shall begin to run unless a report of the accident as therein provided has been filed at the office of the Kansas Workmen’s Compensation Director if the injured workman shall have given his notice of injury as provided by Section 44-520.
“In the instant case, the facts clearly show that approximately 18 months had elapsed after the accident before an accident report was filed and approximately the same amount of time had elapsed since the last payment of compensation in the form of medical treatment had been made to the claimant. Claimant did file his claim for compensation within 180 days after the accident report had been filed. It is the Director’s opinion, however, that when a period of one year had elapsed after the date of accident or after the last payment of compensation and claimant had not at that time filed a claim for compensation, that his right to file such claim and take advantage of the provisions of the Workmen’s Compensation Act had elapsed and that the subsequent filing of an accident report by the employer or its foreman did not revive the claimant’s cause of action under the Act.”
The director ordered the award reversed except that part relating to costs which were assessed against the respondent and its insurance carrier.
Claimant thereafter appealed to the district court from the director’s order, and the district court in its journal entry of judgment dated March 30, 1963, adopted the findings of fact and conclusions of law included in the director’s opinion and affirmed his order assessing the costs against the respondent and insurance carrier. This appeal followed.
Claimant contends the trial court erred (1) in failing to hold the statute of limitations was tolled by the constructive fraud of the employer and (2) in holding that claimant did not commence his action for compensation within the times specified by G. S. 1961 Supp., 44-557 and 44-520a.
Claimant bases his argument on his first contention of constructive fraud of the employer on the following provisions of respondent’s work rules:
“All employees are covered by Workmen’s Compensation while on county time or to and from county jobs in county equipment and must report all accidents to their foremen, shop clerk or the County Engineer’s Office. This report must he made immediately after the accident and in no case later than seven (7) days or employee will relinquish all rights to claim for damages.
“In case of accident, employees must be taken to the doctor for treatment and accident report filed with the insurer immediately.”
We find no evidence that claimant failed to file a claim because of the above rules but there was evidence to the effect that he and the foreman, who was with him when tihe accident occurred and therefore had constructive notice thereof, had “together” decided that no accident report should be filed; that after Doctor Dyck X-rayed claimant and said there was no injury he “did not figure” he had any proof of an injury and, therefore, he did not want to make a report. Doctor Dyck said it was sciatica and that was “partly why he did not do anything about filing a claim.” He had been treated by Doctor Dyck for neuritis for two or three years prior to August 12, 1960.
On April 28, 1961, Doctor Charles Rombold, an orthopedic surgeon, examined claimant and found there had been a narrowing of the intervertebral disc but it was his opinion this had preceded August 12, 1960, although an accident such as claimant described as happening on August 12, 1960, could very well have aggravated the previous existing condition in his back.
Claimant, among other cases, relies on Cramer v. Railways Co., 112 Kan. 298, 211 Pac. 118, in support of his first contention but examination thereof indicates a different situation. A release obtained from an injured workman was set aside on the ground of fraud because of misrepresentation of the amount the workman was entitled to recover, but in our case we can find no evidence of any such misrepresentation. The evidence, as already set out herein, is that claimant and the foreman "together” decided no accident report should be filed. Neither the county engineer nor the foreman had told claimant he had to report the accident within seven days. He had read this in respondent’s rules and regulations. Both the compensation director and the district court refused to make a finding of constructive fraud. Our responsibility is to review the record to determine whether there is substantial competent evidence to support the trial court’s judgment and if it is so found, the judgment will be affirmed. From the record before us, we can only conclude claimant has failed to show constructive fraud on the part of the respondent.
Claimant’s second contention is that his action was commenced within the time provided by statute. The record clearly discloses the accident, of which the foreman had notice, occurred on August 12, 1960, and that eighteen months later on February 7, 1962, an accident report, signed by respondent’s foreman who had not been authorized so to do, was filed by claimant. On April 3,1962, twenty months after the accident, a compensation proceeding was commenced. How does this procedure compare with the statutory requirements appropriate under the circumstances?
It is elementary that the workmen’s compensation act requires notice of an accident to be given to the employer within ten days but that knowledge of the accident by the employer, or his duly-authorized agent, shall render the giving of such notice unnecessary. (G. S. 1949, 44-520.) It is undisputed that Stout, the foreman, had actual knowledge of the accident at the time it occurred.
Respondent had a set procedure for reporting accidents, which was testified to by the foreman, the stenographer in the county engineer’s office, the county engineer, and the county commissioners to the effect that only the county engineer had authority to sign such reports. The record reflects this procedure was not followed, but that the foreman signed the accident report that was filed on February 7,1962.
Pertinent statutory provisions of 1961 Supp. are:
“44-520a. (1) No proceedings for compensation shall be maintainable hereunder unless a written claim for compensation shall be served upon the employer by delivering such written claim to him or his duly authorized agent, or by delivering such written claim to him by registered or certified mail within one hundred eighty (180) days after the accident, or in cases where compensation payments have been suspended within one hundred eighty (180) days after the date of the last payment of compensation. . . .”
“44-557. It is hereby made the duty of every employer including employers electing not to come under this act, to make or cause to be made a report to the commissioner of any accident, or claimed or alleged accident, to any employee which occurs in the course of his employment and of which the employer or his foreman has knowledge, within seven (7) days, after the receipt of such knowledge . . . Provided, further, That no limitation of time in this act provided shall begin to run unless a report of the accident as herein-before provided has been filed at the office of the Kansas workmen’s compensation commissioner if the injured workman shall have given his notice of injury as provided by section 44-520 of the General Statutes of 1949: Provided, however, That any proceeding for compensation for any such injury or death, where report of accident has not been filed, must be commenced before the commissioner within one year from the date of the accident ... of such employee. . . .”
Construing together the above provisions of the statutes (1) that written claim must be filed within 180 days after the accident (2) that every employer has the duty to report an accident to the commissioner (now director) within seven days (3) no limitation of the act shall begin to run unless a report of such accident has been filed with the director and (4) where report has not been so filed, any proceeding for compensation must be commenced within one year from the date of the accident, it becomes obvious from this record that the accident report, whether filed correctly or not, was filed too late to be within the time required under either 44-520a or 44-557 because, in any event, the time could not have been extended beyond one year.
Our court has written numerous opinions on the proper procedure to be followed in filing compensation claims. Included in a recent opinion by Chief Justice Parker (Ricker v. Yellow Transit Freight Lines, Inc., 191 Kan. 151, 379 P. 2d 279) was a comprehensive statement of the history of the proper procedure to be followed in compensation cases under varying circumstances. (See cases cited therein.) The claimant in the Ricker case, as here, contended there had been a timely commencement of his compensation proceeding with the director. Claimant had sustained an injury to his back on May 13, 1960, and he had given this information to his employer within about seven days. He had not made written demand for compensation on his employer until May 3, 1961, and on May 5, 1961, the director received the employer s accident report. Application for hearing was subsequently filed on June 9, 1961. An award of compensation was made by the director in that case on the basis that the demand for compensation was within time and the district court sustained the award. In affirming the judgment, this court stated:
“G. S. 1961 Supp., 44-520a, is not mentioned as a notice requirement in G. S. 1961 Supp., 44-557. It is therefore one of the limitations of time, in the act, which does not begin to run unless the employer files a report of the accident at the office of the workmen’s compensation director.
“The employer having failed to file the report of the accident, there was no time limit in which the claimant (employee) must serve written claim for compensation on it, except as necessary to commence proceedings for com pensation before the Workmen’s Compensation Director within one year.” (p. 155.) (Our emphasis.)
It is to be noted that in the Ricker case the judgment o£ the court was based on the premise the claimant had filed his claim within one year whereas in the instant case claimant had wholly failed to file it until long after that time. Our conclusion must, therefore, be that when claimant’s accident report was not filed within one year from the date of the accident, or by August 12, 1961, his rights to compensation expired and the trial court did not err in its order affirming the order of the compensation director denying compensation.
We have examined other authorities cited by the parties in support of their contentions but on the basis of the record before us, we think it unnecessary to extend this opinion by exhaustive discussion.
The judgment is affirmed.
Jackson, J., not participating. | [
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Tbe opinion of the court was delivered by
Parker, C. J.:
This is an appeal by Harry J. Bloomer, who was charged, tried, convicted and sentenced for the statutory crimes of murder in the first degree (G. S. 1949, 21-401) and assault with felonious intent (G. S. 1949, 21-431).
Under the issues presented by the record procedural, rather than evidentiary, facts are decisive and must be related in chronological order as briefly as the state of the record permits. So far as here pertinent such facts may be stated thus:
On the evening of July 14, 1962, while riding as a passenger in the back seat of an automobile on a public highway near the town of WaKeeney, in Trego County, Kansas, the defendant, a transient, shot and killed Al Claycamp, a deputy sheriff, and shot and seriously wounded Chet McAtee, the then sheriff of such county, who was driving the automobile. After the shooting the defendant escaped in the darkness of the night.
Three days later, on July 17, 1962, the defendant was appre hended and brought before the county court of Trego County where he was charged by complaint with commission of the crimes above mentioned. There, and without counsel, he waived a preliminary examination and was bound over to the district court of Trego County for trial.
On July 23, 1962, the county attorney of Trego County filed a verified information in the office of the clerk of the district court of that county charging defendant in one count with the deliberate and premeditated murder of Al Claycamp and in the second count with the unlawful and wilful assault of Chet McAtee by shooting him with a pistol with intent to kill and maim him.
The day after the information was filed, i. e., July 24, 1962, the defendant was brought before the district court of Trego County at WaKeeney for arraignment. The court inquired if he had a lawyer and if not whether he had the wherewithal to hire one. Having received a negative answer to both questions the court appointed Delmas R. Haney, an able and respected member of the Kansas Bar, who had been practicing law at Hays for many years, to represent defendant. It then allowed a recess in order to give Mr. Haney an opportunity to confer with his client. After a short conference, and on the same day, the court reconvened, announced it would proceed with formal arraignment, and directed the clerk of the court to read the information for that purpose. Upon the reading of the information Mr. Haney announced the defendant entered a plea of not guilty to the crime charged in count one and a plea of not guilty to the offense charged in count two of the information.
Defendant’s petition for a change of venue and his motion for continuance, which were filed with the clerk of the district court of Trego County on August 13, 1962, were presented to the district court of that county on August 16, 1962. After a hearing the court granted the petition for a change of venue and designated the district court of Ellis County, Kansas, for trial of the case. It also granted the motion for continuance and ordered the trial of such action be continued until October 16, 1962. Thereafter, pursuant to the order changing venue, defendant was delivered to the sheriff of Ellis County where he was incarcerated and confined until the conclusion of his trial.
On October 16, 1962, the case came on for trial in the district court of Ellis County. Thereupon, and prior to voir dire examination of prospective jurors, defendant’s counsel filed and presented to the court a motion wherein defendant objected to any trial on the charges then pending against him “at this time” and asked that he be discharged from custody for a number of reasons, one of which was based on the premise “That no Certified copy of the Information was served on the defendant or his counsel forty-eight (48) hours prior to the arraignment as provided by G. S. 1949, 62-1302.” After a hearing the trial court overruled this motion on October 16 and directed that the trial proceed.
Subsequently, and on October 18, after the jury had been selected but prior to the introduction of evidence, defendant’s counsel filed and presented a motion objecting to the introduction of any testimony in the case, one ground of which was based on the same premise as the one heretofore quoted from the defendant’s written objection to the trial of the action. This motion was overruled on October 19.
Thereupon the court proceeded with the trial which ultimately resulted in a verdict finding defendant guilty of murder in the first degree, as charged in count one of the information and determining that he be punished by confinement at hard labor in the penitentiary of the State of Kansas, and a verdict finding defendant guilty of the offense of assault with felonious intent, as charged in count two of the information. These verdicts were accepted by the court and the jury was discharged.
Within the time previously fixed by the court the defendant, by and through his court-appointed attorney, filed a motion for a new trial where, among other things not here important, he asked for a new trial on the following grounds:
“That the court acted erroneously in overruling this defendant’s objection to trial of the action.
“That the court acted erroneously in overruling defendant’s objection to the introduction of testimony.
“That no certified copy of the information was served on the defendant or his counsel forty-eight (48) hours prior to the arraignment as provided by G. S. 1949, 62-1302.”
Upon the overruling of his motion for a new trial the court rendered judgment against defendant on the verdicts and sentenced him according to law. Thereupon, and within due time, defendant gave a pro se notice of appeal from the judgment and sentences imposed by the district court by filing such notice with the clerk of the district court of Ellis County and by serving a copy thereof upon the county attorney of Trego County, who had appeared for and represented the State of Kansas throughout the trial of the action in the district court of Ellis County.
Thereafter, under the provisions of G. S. 1961 Supp., 62-1304, appellant sought and obtained a free transcript of the record from the district court of Ellis County. Subsequently, on May 21, 1963, pursuant to this court’s Rule No. 56, now found in Prefatory Rule No. 1(f) of the Rules of the Supreme Court of Kansas, effective January 1, 1964, on appellant’s request for appointment of new counsel for purposes of his appeal, the district court appointed F. F. Wasinger of Hays, a capable and experienced attorney, to represent him in that capacity. Later Mr. Wasinger filed an abstract and brief in the case and personally appeared in this court on appellant’s behalf on oral argument of the cause.
Before giving consideration to the merits of the appeal a question of jurisdiction requires comment. Directing our attention to the fact appellant’s notice of appeal was served upon the county attorney of Trego County, and pointing out that G. S. 1949, 62-1724, provides that a defendant may appeal at any time within six months from the date of sentencing by serving notice of appeal “on the county attorney of the county in which he was tried,” the state (appellee) suggests that, under the requirements of this section of the statute, appellant was required to serve the county attorney of Ellis County before this court could acquire jurisdiction of the appeal. We do not agree. Briefly stated it is our view, that under the circumstances existing in this case, the county attorney of the county in which the prosecution was commenced was the acting county attorney in the prosecution of the case in the county to which the case was removed and tried on change of venue.
The most important claim of error advanced by appellant, which is here by reason of the overruling of his motion for a new trial, is based upon the premise that the trial court erred in compelling him to go to trial over objections, raised by him in the motions to which we have previously referred, when the clerk of the district court had failed to make out a copy of the information and cause the same to be delivered to him or his attorney at least forty-eight horns before he was arraigned on the information, the first count of which charged him with the commission of murder in the first degree — a capital offense.
The section of the statute (G. S. 1949, 62-1302) on which appellant bases his position on this claim of error has been a part of our code of criminal procedure since 1869, without legislative change or amendment, notwithstanding repeated decisions of this court requiring strict compliance with its requirements. It reads:
"It shall be the duty of the clerk of the court in which an indictment or information against any person for a capital offense may be pending, whenever the defendant shall be in custody or held by recognizance to answer thereto, to make out a copy of such indictment or information and cause the same to be delivered to the defendant or his counsel at least forty-eight hours before he shall be arraigned on such indictment or information. If the defendant pleads and goes to trial without objecting for the want of such copy, the neglect of duty by the clerk will not be sufficient ground to set aside the verdict.”
There can be no dispute in the controlling facts of this case so far as they relate to compliance or noncompliance with the requirements of the foregoing statute. The record makes it affirmatively appear (1) that the information was filed in the office of the clerk of the court less than forty-eight hours prior to appellant’s arraignment; (2) that no copy of the information had ever been delivered to the appellant or his counsel prior to such arraignment; and (3) that although appellant entered a plea of not guilty to the crime or murder, when called upon by the court to plead on arraignment, he nevertheless did not go to trial on that charge without first objecting to trial for want of service of a copy of the information in the manner and within the time required by 62-1302, supra.
What has just been stated makes it obvious there was no compliance with the requirements of 62-1302, supra, in the case at bar. Moreover, we are convinced, that in the face of such facts and others previously set forth in this opinion, the provisions of such section, as well as what is said and held in our decisions in The State v. Wilson, 42 Kan. 587, 22 Pac. 622, and State v. Applegate, 180 Kan. 186, 303 P. 2d 148, to which we adhere and by reference make a part of this opinion, compel a conclusion the trial court should have granted appellant a new trial on the verdict returned by the jury as to count one of the information and that its failure to do so requires a reversal of its judgment as to that phase of this appeal.
In reaching the foregoing conclusion we have rejected, not overlooked, contentions advanced by appellee to the effect that appellant waived his right to a copy of the information as required under the provisions of 62-1302, supra, (1) by entering a plea of not guilty to count one of the information and (2) by asking for a change of venue and a continuance. We are cited to and know of no de cisions upholding either of appellee’s contentions and may assume it has found none. Re that as it may, the short answer to both contentions is that we have held in substance (see State v. Applegate, supra, pp. 188-189) that a defendant charged with a capital offense has the right, under the provisions of 62-1302, supra, to object for the want of service of a copy of the information prior to arraignment at any time before going to trial.
Since the conclusion heretofore announced requires a new trial on count one of the information and all other claims of error assigned by appellant as grounds for the granting of that relief relate to alleged trial errors, which may be of no consequence if this case again comes to this court on appellate review, arguments advanced with respect to such claims need not be here considered or discussed.
Nothing in what has been previously stated and held with respect to granting appellant a new trial as to count one of the information, because of appellee’s failure to comply with the mandatory requirements of 62-1302, supra, either warrants or permits a conclusion the trial court erred in refusing to grant him a new trial on tire separate verdict returned by the jury as to count two of the information, which charged him with the crime of assault with felonious intent. In this jurisdiction such crime (G. S. 1949, 21-431) is a noncapital offense and our repeated decisions (see, e. g., Darling v. Hoffman, 180 Kan. 137, 138, 139, 299 P. 2d 594; Smith v. Hudspeth, 166 Kan. 222, 224, 199 P. 2d 804; White v. Hudspeth, 166 Kan. 63, 65, 199 P. 2d 518; Pennebaker v. Hudspeth, 165 Kan. 662, 663, 197 P. 2d 939; Kanive v. Hudspeth, 165 Kan. 658, 660, 198 P. 2d 162) hold that the provisions of 62-1302, supra, have no application to noncapital offenses.
Nor can it be successfully argued that appellant was entitled to a new trial as to count two of the information because of the trial court’s refusal, on his request, to instruct fire jury on a lesser offense, tiran that defined in G. S. 1949, 21-431, namely, assault as defined in G. S. 1949, 21-435. We are not disposed to labor this contention. It suffices to say, that after reviewing the evidence, we are convinced it has been decided contrary to appellant’s position, under circumstances almost identical to those involved in the instant case, in State v. Barnett, 156 Kan. 746, 137 P. 2d 133, which reads:
“Defendant next argues that the trial court erred in not instructing the jury on assault and battery and simple assault as defined in G. S. 1935, 21-435 and 21-436. There was no evidence in this record that would justify such instructions. Defendant admitted that he shot Wells twice at close range with a 38-caliber revolver. A loaded 38-caliber revolver is a deadly weapon. Defendant claimed he shot because he feared for his own safety. Under such circumstances he was guilty of assault with intent to kill or he was not guilty at all. Under no circumstances could the shooting of a man with a 38-caliber revolver at close range be simple assault or assault and battery. See State v. Thyer, 143 Kan. 238, 53 P. 2d 907; also, State v. Young, 109 Kan. 526, 200 Pac. 285.” (p. 753.)
In conclusion it should be stated that after carefully examining the entire record, as it relates to count two of the information, we fail to find anything which warrants or permits a conclusion the trial court erred either in overruling appellant’s motion for a new trial or in rendering judgment against him in accord with the verdict returned by the jury on such count.
What has been heretofore stated and held requires (1) that the trial court’s judgment as to count one of the information be reversed with directions to grant appellant a new trial on such count and (2) that its judgment and sentence on count two of the information be affirmed.
It is so ordered.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Fatzer, J.:
This appeal again presents the question whether a Masonic lodge has the capacity to take real property devised to it by will. The facts are not in dispute, and those pertinent are briefly summarized: Elmer Fred Bauer, an elderly unmarried Rice County farmer and landowner, died on September 19, 1960, leaving a last will and testament by which he devised the remainder interest in 160 acres of farm land in Rice County to the Sterling Masonic Lodge No. 171 A. F. & A. M. of Sterling, Kansas. A life estate in the real property was devised to a friend and neighbor, Glen H. Warnoclc, who died on May 28, 1962. At the time of final settlement, the heirs at law of the decedent contended that the lodge was incapable to receive a devise of real property. The probate court found against the heirs at law, and on appeal the district court upheld the decedent’s will and the specific devise to the lodge. The heirs at law have appealed from that judgment.
At the trial in the district court, counsel for the appellants stated there was no oral testimony to he adduced on their behalf. Evidence was presented on behalf of the lodge, and the court, after hearing the evidence, stated:
“Now, the court has heard evidence in this case, introduced by the lodge, tending to prove that the lodge is a charitable organization. As indicated at pretrial, in the case of Clark v. Watkins, 130 Kan. 549, the Supreme Court then said, and I am quoting part of the sentence, and the rest of the sentence doesn’t detract from that : ‘The Masonic organization is a recognized institution of charity and benevolence.’
“. . . that the court could take notice of the holding of the Supreme Court of this state, without the introduction of any evidence whatsoever, and that would be more than adequate support for a finding that the will as written controls, and that this is a valid devise to Chapter 171 of Sterling.
“Accordingly, the court finds that there is no reason whatsoever why the Masonic Lodge of Sterling, Chapter 171, should not be entitled to take title to this real estate.
“Now, the court does not think that under the law there are any strings attached to this whatsoever. It passes to the lodge under the findings that the court is making, if it is necessary for the court to even make those findings, and that it is their property . . .”
In harmony with its statement and findings, the district court entered judgment that the lodge had capacity to take the real property devised by the decedent’s will and that it owned the same “without restriction as to its use.”
The appellants contend that the devise of real property to the lodge is of no force and effect for the reason that G. S. 1949, 17-1703 prohibits the lodge from taking the real property for any purpose, and that since there was no residuary clause, the devise lapsed and the property descended to the heirs at law.
The appellees contend that the devise of real property to the Sterling lodge vested title in the lodge subject to the life estate of Glen H. Warnock and that upon his death, it owns the property without any restriction or limitation as to its use.
The Sterling lodge was incorporated October 5, 1885, and its Charter was filed in the office of the secretary of state on that date. It was organized pursuant to Compiled Laws of Kansas, 1885, Chapter 23, Article 14, Section 122, the equivalent of G. S. 1949, 17-1701. The statute was first enacted in 1866 (Laws of 1866, Ch. 57, Sec. 43), and was a part of the general law prescribing the powers and duties, of corporations. (G. S. 1868, Ch. 23, Art. XIV, Sec. 122.) Generally speaking, the act conferred upon any religious society, literary, charitable or benevolent associations, or any grand or subordinate lodge of Free and Accepted Masons or of the Independent Order of the Odd Fellows, with the consent of a majority of its members, to become bodies corporate, and when so organized, it shall have all the powers and privileges and be subject to all the restrictions in the act contained. The act was later amended to include other specific named fraternal organizations, or “any other secret benevolent association or organization.”
When the Sterling lodge was incorporated, G. S. 1949, 17-1703 or its equivalent was not then a part of our statutory law. The section was added in 1899 (Laws of 1899, Ch. 164, Sec. 1), and the part here pertinent reads:
“Any subordinate lodge . . . which, is under the control of a supreme, grand or other superior organization may purchase, own, manage, control, improve, mortgage and dispose of such real estate, including such suitable building or buildings as may be necessary to provide suitable accommodations for the holding of its meetings and transacting of its business . . . Provided, That any such building or buildings as are provided for herein may be used in part for other purposes.”
Appellants’ entire argument that the Sterling lodge lacks capacity to take the real property devised is based on the holding in Kennett v. Kidd, 87 Kan. 652, 125 Pac. 36. That case involved a decedent’s will devising property to a local camp of Modern Woodmen, a fraternal insurance company whose legal source of income was limited to dues, premiums and assessments. There, the decedent owned a store at Milford, Kansas, and about a year before his death a stroke of paralysis greatly disabled him so that he was unable to attend the store without help. He owned considerable property and life insurance. After the decedent became partially paralyzed, a membership was applied for in a local Woodmen camp, and certain officers, upon the occasion of a meeting, went to the store where the decedent was initiated into the order as a social member, but he never attended any of its meetings. He was about 80 years of age, very feeble, and possessed none of the qualifications which would naturally lead to his selection as a social member. A member of the organization called upon the decedent and he executed a will devising the bulk of his estate to the local order to be used as the camp saw fit. In an action by an heir at law it was held that the local camp could not take and hold the property given to it by the will, and upon the consideration of the equivalent of G. S. 1949, 17-1703, the court said:
. . It is manifest from this legislation that the camp in question can not lawfully hold real estate except such as may be necessary to provide suitable accomodations for holding its meetings and transacting its business, including such buildings upon the real estate as may be necessary for such purposes. When, and only when, such buddings and real estate are necessary for these purposes can the lodge lawfully hold the same, but in that case the buildings themselves need not be confined exclusively to lodge purposes, but if used in part therefor they may be used in part for other purposes, the evident intention being that when a camp needs and erects a lodge building it may make it large enough so that a portion of it may be rented and thus furnish an income as a partial return upon the expenditure. . . .” (l. c. 657, 658.)
A rehearing was granted to enable the parties to fully present their views, and in the opinion on the rehearing (Kennett v. Kidd, 89 Kan. 4, 130 Pac. 691) the court said:
“. . . But the case is not one of an ordinary corporation, which all agree may take by will unless expressly precluded; it is the case of a local fraternal beneficiary body, which the legislature has confined within a narrow zone of activity, dealing out its powers with a sparing hand. If a man in advanced years can be induced to devote the bulk of his estate to a local camp as was the testator in this case, then there is no reason why other benefactors might not add their gifts until a local organization of a few neighbors could become the holder of property of great value, far beyond any real or imaginary needs for the transaction of its business.
“The decision is not to be carried beyond its terms and does not interfere with the privileges accorded the societies and associations, including Masons and Odd Fellows, mentioned in section 1830 of the General Statutes of 1909. (G. S. 1949, 17-1701.) The authority granted to local subordinate organizations by section 1832 (G. S. 1949, 17-1703) in no wise enlarges or changes the source of income from which they may provide necessary buildings, but simply directs how they may handle and hold such property instead of doing so by and through the grand or superior organization.” (l. c. 6, 7.) (Emphasis supplied.)
As indicated in its opinion on rehearing, the court carefully distinguished fraternal insurance companies such as the Modern Woodmen from charitable and benevolent organizations such as a Masonic lodge which the court in the instant case found to be in part charitable and in part fraternal and benevolent. The Kennett case limits its application to the organization it was dealing with— a fraternal mutual benefit society authorized to issue certificates of insurance to its members. (Clark v. Watkins, 130 Kan. 549, 287 Pac. 244.) Such organizations were then and are today controlled under the insurance sections of the statutes. (G. S. 1949, 40-701, 40-704 and 40-705.) The activities and operations of insurance companies are much more closely controlled than ordinary corporations.
In 1930, in Clark v. Watkins, supra, this court considered whether a Masonic lodge is capable of becoming the beneficiary under a decedent’s will, and it was held that Kennett v. Kidd, 87 Kan. 652, 125 Pac. 36, was not authority that the Masonic lodge was incapable of becoming a legal recipient of a testamentary gift. In that case the question was raised by a demurrer to a petition which alleged that the decedent executed a will and died in 1927, leaving all of his property to Cable lodge No. 299 of the Ancient Free and Accepted Masons located at Arlington, Kansas, a charitable and benevolent association. There, as here, the appellant heirs at law contended that the lodge lacked capacity to take the property devised. Speaking through Mr. Chief Justice Johnston, the court denied the claim, and it was held:
“A Masonic lodge, a charitable and benevolent organization, is capable of becoming the beneficiary under a will and of the devotion of the property received to charitable uses.
“Kennett v. Kidd, 87 Kan. 652, 125 Pac. 36, 89 Kan. 4, 130 Pac. 691, is held not to be an authority that the Masonic lodge is incapable of being a legal recipient of the testamentary gift.” (Syl. ¶¶ 1, 2.)
In the opinion it was said:
“The contention of the plaintiffs is that the Masonic lodge was incapable of taking the property left it by the will. The whole argument of plaintiffs is based on the holding in Kennett v. Kidd, 87 Kan. 652, 125 Pac. 36, and an opinion on rehearing, 89 Kan. 4, 130 Pac. 691. In that case it was held that under a statutory provision (R. S. 17-1703) a camp of Modern Woodman, a fraternal insurance company whose legal source of income was limited to dues, premiums and assessments, could not take and hold property given to it by will. The ruling was based on the fact that the camp was a fraternal benefit insurance order whose powers and duties are limited by statute, and who could only act within the provisions prescribed by the legislature. In the opinion it was said of the camp:
“ ‘There is no trust for charitable uses, there is no charity. There is simply a gift outright to the local camp of a fraternal order of a large amount of property, real and personal, to be used, not as the law provides but as the camp may see fit. While corporations usually are not prohibited from accepting devises and bequests, and while one of sound mind may give his property to whatsoever persons he desires, it appears to be the legislative policy of the state that fraternal beneficiary societies are to be governed by rules and restrictions applying specifically to them; and indeed this may well be, because such societies are not corporations of the ordinary kind or in the usual acception of the term. They are associations of men who voluntarily combine for mutual benefit, but who can do so only under the terms and provisions prescribed by the legislature.’ (Kennett v. Kidd, 87 Kan. 652, 659, 125 Pac. 36.)
“The case is not an authority that the Masonic lodge is incapable of receiving the gift made by the testator. The plaintiff not only pleads that it is a charitable organization but the Masonic organization is a recognized institution of charity and benevolence. No reason is seen why it may not become a beneficiary under a will and apply testamentary and other gifts to charitable uses. It has been said:
“ ‘It is the settled rule that courts will look with favor upon all attempted charitable donations, and will endeavor to carry them into effect, if it can be done consistently with the rules of law.’ (Lehnherr v. Feldman, 110 Kan. 115, 117, 202 Pac. 624.)
“In a note in 5 A. L. R. 1175, where many cases are cited, it is said:
“ ‘Although the authorities are not in entire harmony, it may be stated as a general rule that a gift to a fraternal order will be upheld as a valid charitable gift.’
“In 1 Schouler on Wills, 6th ed. 45, in speaking of associations like the one in question, it was said:
“ ‘It has been recently held that such associations can be put into bankruptcy, and also there are various recent decisions in line with modem thought to the effect that they may be the recipients of testamentary favors.’” (l. c. 550, 551.) (Emphasis supplied.)
Since the Masonic lodge, the beneficiary named in the will, was a charitable organization and capable of receiving the gift for charitable uses, this court upheld the district court’s ruling sustaining a demurrer to the petition of the plaintiffs heirs at law. And so here. The opinion on rehearing in the Kennett case and the opinion in the Clark case expressly state that Kennett v. Kidd, 87 Kan. 652, 125 Pac. 36, is not an authority that the Masonic lodge is incapable of receiving the gift made by the testator. However, in the Clark case, the decedent’s will, as here, made outright testamentary gifts to the Arlington lodge and it was held that since the Masonic organization is a recognized institution of charity and benevolence, it was capable of becoming a devisee under a will and of devoting the property received to charitable uses.
As previously indicated, the district court found that the Sterling lodge was in part charitable and in part a fraternal and benevolent organization. An organization may be charitable for one purpose and not charitable for another, that is, it may be noncharitable for taxation purposes (Manhattan Masonic Temple Ass’n v. Rhodes, 132 Kan. 646, 296 Pac. 734), but benevolent and charitable for other purposes. (Masonic Home v. Sedgwick County, 81 Kan. 859, 106 Pac. 1082; Robinson v. Hammel, 154 Kan. 654, 658, 659, 121 P. 2d 200.) In McMillen v. Summunduwot Lodge, 143 Kan. 502, 54 P. 2d 985, this court held that a subordinate lodge could have existence as a fraternal organization by the authority of the grand lodge of the order without obtaining a charter from the state, but if it incorporated pursuant to G. S. 1949, 17-1701, it could exercise the powers and privileges as a corporation as therein provided and that when incorporated, a subordinate lodge was a charitable or benevolent organization with statutory and charter powers. The fact that the Sterling lodge is not authorized by the provisions of its Charter to accept a testamentary gift or devise does not bar it from accepting such a gift and devoting it to charitable uses. (Barger v. French, 122 Kan. 607, 610, 611, 253 Pac. 230.) Compare McMillen v. Summunduwot Lodge, supra, where the provisions of the charter of the lodge authorized it to contract and be contracted with; to sue and be sued in all the courts of the state, and to lease, purchase, hold, sell and convey real or personal property, or acquire the same by donation or bequest.
We think the Clark case controls the decision in this case, and we hold that the testamentary gift to the Sterling lodge is required to be devoted to charitable uses. However, in view of the express provision of G. S. 1949, 17-1703, the lodge would be authorized to sell the property devised and úse the proceeds in the erection and maintenance of a suitable building as may be necessary for adequate accomodations for holding its meetings and transacting its business, and that such building may be made large enough so that a portion of it may be rented to thus furnish income to the lodge.
Accordingly, we affirm the district court’s judgment sustaining the will and the testamentary gift to the lodge, but modify the judgment to the extent that the property devised be devoted to charitable uses, or, if the property be sold, the proceeds be used for charitable purposes or to provide a suitable building to accomodate its meetings and transact its business.
It is so ordered.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by plaintiff, a resident of New Mexico, from a judgment in a replevin action for the recovery of possession of a registered quarter horse wherein the trial court ruled in defendant’s favor by denying plaintiff possession of the horse, and from its further order overruling plaintiff’s motion for new trial.
The record discloses that prior to August, 1961, plaintiff, Henry H. Grandi, who had a stock farm in New Mexico, had made a practice of reading the publications of the American Quarter Horse Association and other channels of information because he had been a previous owner of and had “kept track” of the particular horse in question, named “Bold Charge.” Plaintiff learned the horse was going on the auction block at Vinita, Oklahoma, on August 26, 1961, and he contacted J. E. Carlin of Rural Route 1, Haskell, Oklahoma, who had been his very good friend for thirty years, and explained to Carlin that he would not be able to attend the sale and asked Carlin to bid the horse in for him. On August 26, 1961, defendant, Robert L. Thomas, the then owner of the horse in question, placed it for sale and it was bought by J. E. Carlin as he had been commissioned by plaintiff to do.
Carlin’s testimony was that defendant was dissatisfied with the $475.00 price that was bid and paid for the horse, and was going to have the clerk of the auction declare a “No Sale” but, as a result of a conversation between Carlin and defendant to the effect that defendant could repurchase the horse for $575.00, defendant decided to allow the sale to stand and Carlin took the horse to his ranch in Oklahoma. A sharp dispute exists as to the time limit in which defendant was to be entitled to repurchase the horse. Carlin testified the limit was to be thirty days while defendant testified it was ninety days. In September, 1961, defendant wrote Carlin a letter inquiring about the horse and stating he hoped to be able to “get him back.”
Carlin further testified that approximately sixty days after the conversation at the auction, defendant contacted him and sought performance of the agreement but Carlin told defendant he could not have the horse because the horse did not belong to him.
While Carlin was absent from home in December, 1961, defendant called at the ranch and talked with Mrs. Carlin. She remembered having heard portions of the conversation between her husband and defendant at the time of the sale in Vinita but did not know any of the details. After some persuasion defendant was able to obtain a bill of sale dated December 6, 1961, from Mrs. Carlin, but before she would sign the bill of sale she insisted upon, and defendant added a clause whereby if for some reason her husband objected to her selling the horse, she was to be permitted to repurchase the horse by March 1, 1962, for the sum of $575.00 plus $1.00 a day for keep. She received $575.00 for the horse and in the bill of sale she gave defendant she was receipted for $40.00 cash for the care of the horse during October and November, 1961, which receipt defendant had insisted upon, although Mrs. Carlin testified she did not actually receive the $40.00 in cash. Four days later on December 10, 1961, when Carlin returned home he noticed the quarter horse was gone and was informed by Mrs. Carlin that defendant had come back and had taken the horse. Carlin immediately told his wife the horse did not belong to them, that it belonged to plaintiff, and he explained about his agency to purchase the horse for plaintiff. Mrs. Carlin thereafter made many unsuccessful efforts to repurchase the horse from defendant under the following pertinent portion of the bill of sale between her and defendant:
“Said second party [defendant] agrees to allow first party [Mrs. Carlin] the right to purchase said stallion back within date of March 1, 1962 for the price of $575.00_,s and the sum of one-dollar per day feed which second party [defendant] should have in said time to March 1, 1962.”
On February 1, 1962, plaintiff informed defendant the reason Carlin could not perform on his agreement with defendant to return the horse was that he had only purchased the horse as agent for plaintiff. This was the first actual notice that defendant admitted that he had of Carlin s agency arrangement with plaintiff.
On March 9, 1962, after he had contacted defendant, plaintiff made demand and tender of $575.00 plus the cost of the horse’s keep, but he was refused possession of the horse. Plaintiff then commenced this action in replevin which resulted in judgment for defendant. Hence this appeal.
At the time of the auction sale in August, 1961, defendant gave Carlin a document styled “Transfer Report and Rill of Sale” reading in pertinent part as follow:
“The American Quarter Horse Association
“P. O. Box 271 Amarillo, Texas
“Transfer Report and Bill of Sale
“(See Instructions on Reverse Side)
“Aug. 26_196 1
“Date Sold — Important
_“bold charge_Number 77,626
“Registered Name and Number of Horse Sold
“From (Seller)_Robert l. thomas_(Print)
_GIRARD_KANSAS
Street City State
“To (Buyer)_henry h. grandi_ (Print)
First Name Initial Last Name
807 N Guadulupe Carlsbad New Mexico
Street City State
“Telephone No._TU 52781_
“Location of Animal_
“Acknowledgement. I have read the rules and regulations as printed on the reverse side of this form and I hereby certify that the animal agrees with the pedigree on record with the Association.
“Further, I acknowledge and certify that I am the last recorded owner (with the Association) of this horse and have full rights to effect this transfer.
“Therefore, I authorize the Association to record this transfer of ownership.
“Signature of the Seller Signed_S/ Robert L. Thomas_
Same Name as Last Appearing on Reg. Cert.
“Signature of the Buyer Signed_S/ Henry H. Grandi_ ”
In addition to the foregoing, the document also included a provision for a $5.00 transfer fee. At the time of the sale plaintiff’s name, address, telephone number, and signature were not placed thereon. The evidence showed that Carlin filled in those blanks at a later time. Evidence that plaintiff paid Carlin the price bid at the sale within thirty days and that prior thereto Carlin had sent plaintiff the above document of the American Quarter Horse Association is not in dispute. Neither is there any dispute on plaintiff’s testimony that this was the second time plaintiff’s name had appeared in the Association’s records as owner of the horse in question and that his desire to repurchase the horse was the reason for his efforts to keep current with the facts surrounding the horse.
The trial court mailed its lengthy memorandum opinion to the parties. Examination of such opinion makes it clear that much of the undisputed testimony in this case was overlooked because in its opinion the trial court raises certain questions which the record reflects were answered in the testimony. The findings of fact and conclusions of law of the trial court were as follows:
“Findings of Fact.
“1. J. C. Carlin, was not acting as agent for plaintiff Aug. 26, 1961.
“2. Ownership of the stallion passed to J. C. Carlin Aug. 26, 1961.
“3. Plaintiff has no ownership or title to the stallion in question.
“4. The purported sale of Dec. 6, 1961 to defendant was ratified by J. C. Carlin and he is estopped to deny the same.
“5. The title and ownership to the stallion is vested in defendant.
“6. The Court finds generally in favor of defendant and against plaintiff.
“Conclusions.
“1. Plaintiff’s petition for replevin of the said stallion, Bold Charge, No. 77,626, is denied.
“2. Plaintiff’s amended prayer for damages for unlawful detention of said stallion is denied.
“3. Judgment is rendered in favor of defendant and against plaintiff.”
Either plaintiff or Carlin was qualified as a bidder at the auction sale and the rule is that after the auctioneer’s hammer fell, either could have been liable for the purchase price of the horse and, further, that when property is struck off to one who is in fact the agent of another for that purpose, and such agency is disclosed by the memorandum of sale, the contract may be enforced against the principal when discovered. (7 Am. Jur. 2d, Auctions and Auctioneers, § 22, pp. 240, 241.) Defendant had the right to complete the document of the American Quarter Horse Association or see to it that Carlin completed it. Defendant did not see fit to do this but gave up his title relying on an oral conversation upon which there is a sharp dispute in the evidence. This was a special agency and Carlin’s agreement to allow defendant to repurchase the horse was beyond his authority, and thus did not bind plaintiff. (Siedhoff v. Campbell, 141 Kan. 255, 40 P. 2d 404.)
Defendant contends that Carlin ratified the agency of his wife by his delay in reporting her actions to plaintiff, but since it is certain that Carlin had no title to the property in the first place, neither he nor his agent could have passed title in view of the general rule that “. . . title, like a stream, cannot rise higher than its source.” (46 Am. Jur., Sales, § 458, p. 620; Jordan v. Kancel, 188 Kan. 292, 294, 361 P. 2d 894.) The Jordan case includes a good discussion of applicable rules of law which we should like to mention even though the facts of that case are not congruent with the facts here.
We find very little comfort for defendant in the authority cited by him in 3 Am. Jur. 2d, Agency, § 325, p. 681, for the reason he admits that by his acceptance of the bill of sale from Mrs. Carlin, he gave her an unqualified right, on or before March 1, 1962, to repurchase the horse for $575.00 plus $1.00 per day for expenses. No question of the statute of limitations is present in this case and we are, therefore, not impressed with defendant’s argument that plaintiff waited too long to enter into the negotiations between the Carlins and defendant.
Plaintiff relies on 2 C. J. S., Agency, § 30, p. 1067; § 91, c., p. 1184; § 97, p. 1220, and we think this authority is quite helpful. In the last analysis defendant was bound by the clause present in his bill of sale from Mrs. Carlin, wherein she was given the right to repurchase, and his refusal to return the horse upon timely demands by her and by plaintiff forces us to conclude the trial court erred in entering judgment in favor of defendant and such judgment must be reversed. It is so ordered. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action by defendant in error in the district court of Bourbon county to recover the possession of certain horses claimed to have been unlawfully taken and detained by the plaintiffs in error, defendants below. The principal point made by the learned counsel for plaintiffs in error is, that the verdict was not sustained by sufficient evidence. It appears that Brewer had a livery stable, and that one Jackson was in charge of it, Brewer’s time being principally employed in a restaurant which he also owned. Jackson sold and delivered the property in question to Ladd, one of the defendants, who the next day sold and delivered it to Routt, another defendant. The defendants claimed that Jackson was a partner of Brewer’s, or, if not, an agent with power to sell. To this point then, the relation of Jackson to Brewer, the principal part of the testimony is directed. Brewer’s testimony was clear against any partnership or any authority to sell. True, he did not use the very words, “there was no partnership,” but he says it was his livery stable, that hired men took charge of it for him, that Jackson was tending stable for him as a “hired man,” stated the terms of arrangement between them, which showed Jackson an employé simply, and denied ever giving him authority to sell. Jackson testified that there was a partnership. Other testimony went to the statements, admissions, and conduct of these two parties. ‘The jury found that there was no partnership or authority to sell. We cannot say that they erred. True, several witnesses testify to 'statements from Brewer indicating a partnership — some even to his speaking of Jackson as his partner. Still, we cannot say that this testimony compelled a different verdict. Some of the witnesses were mixed up with this purchase; others, from the record apparently disinterested, may have so conducted themselves on the witness-stand as to carry little conviction of their truthfulness. At any rate, the case comes clearly within the rule, that where there is clear, positive and direct testimony to sustain every essential fact, this court should not disturb the verdict because of a seeming preponderance of testimony against it.
A second important question is, in the kind of testimony offered to prove the damages for the detention, and the basis upon which the jury assessed the damages. Evidence was admitted of the value of the use of the property from the time it was taken, down to the time of the verdict — the property having been retained by the defendants under a redelivery bond — and the jury evidently returned such value as the damages for the detention. This, in the judgment of the writer of this opinion, is not the true rule; but a majority of the court hold otherwise. See the opinion in Yandle v. Kingsbury, recently filed, (ante, p. 196.) Counsel contended that such damages are'special damages, and must be alleged in the petition, or proof thereof is inadmissible. "We do not think so. By the detention the party is deprived of the use of his property; and whatever is the value of such use, the ordinary value of the use of such property, is the natural and necessary result of the detention. No special use was suggested, and the only proof was as to the ordinary value of the use of such property.
Several errors are alleged in the admission and rejection of testimony. Without noticing them in detail, it is enough to say that most of the rulings of the trial judge in this matter were unquestionably correct; that while some of them perhaps were technically wrong, yet that these were in minor matters, and whether right, or wrong are not in our judgment of sufficient materiality to justify us in sending the case back for a new trial. •
Some fifteen special instructions were asked by plaintiffs in error, all of which were refused; and the only instructions given were embodied' in a general charge prepared by the court. Most of the propositions embraced in these special instructions were given in the general charge, and of course the court was under no obligations to repeat them. One proposition however advanced by counsel, which the court refused to give, is made a special ground of criticism, and authorities cited in support of it. The proposition advanced is, that a bona fide purchaser from a fraudulent vendee acquires a good title; and it is insisted that, though the sale might have been avoided as to Ladd, the purchaser from Jackson, yet, not having been avoided while the property was in Ladd’s possession, and Routt having purchased in good faith, he at least acquired a good title. The error lies in this: that doctrine applies only to cases of voidable sales, and never to those absolutely void. In a voidable sale, the title passes subject to the right of the vendor to proceed to set the whole transaction' aside on account of the fraud practiced upon him; in a void sale, no title passes. Where the title passes, the fraudulent vendee may in some cases transfer a good title to a bona fide purchaser from him; but where no title passes the pretended vendee can transfer no title to a third party under any circumstances. Here, if Jackson was a partner, or an agent with authority to sell, a good title passed; or, if not being a partner, and. not having authority to sell, Brewer so held him out to the world as to induce third parties to believe he was either a partner or had authority to sell; or, if without any authority he made the sale, and Brewer afterward ratified it, then also a good title passed. But on the other hand, if none of these things existed, then the pretended sale from Jackson to Ladd passed no title, was absolutely void; and Ladd, having nothing, could transfer nothing. To this effect were the instructions given, and they were correct. To have gone beyond, and added what the ■counsel claimed, would, we think, have been apt to mislead the jury, and suggested that as having support in the testimony which really we think had none.
Thus far we have noticed no error of sufficient moment to justify a reversal of the judgment. As to one of the plaintiffs in error, George Ladd, however, we think the judgment cannot be sustained. He purchased the horses from Jackson, sold them to Eoutt, who put them in Trent’s possession. Eoutt and Trent'filed a joint answer denying the allegations in the petition. Ladd filed a separate denial. The motion also for a new trial was a joint and several motion. Ladd it appears neither had possession, nor claimed any right to the possession. We think therefore it was error to render judgment against him for the return of the property, and damages. True, he signed the redelivery bond with the other defendants, and one John Lawrence, and he may ultimately be made liable upon that bond for the amount of the judgment; but the execution of that bond gives no right to render a judgment in the present action against the obligors thereon. The judgment therefore against him must be reversed, and the case remanded for a new trial. As to the other plaintiffs in error, it will be affirmed.
One-half of the costs of this court will be taxed against the defendant in error, and one-half against the two plaintiffs in error against whom the judgment is affirmed.
■ All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action on a bill of exchange drawn by Young, Bro. & Co. of St. Louis, Mo., upon A. J. Hunt & Co. of Columbus, Kansas, dated at St. Louis, December 2d 1872, payable in sixty days, to the order of the drawers, and accepted by A. J. Hunt & Co. December 3d, 1872. Before maturity the draft was transferred by indorsement thereon to the State Savings Association of St. Louis by Young, Bro. & Co. A few days after the draft became due it was sent by the plaintiff to the First National Bank at Baxter Springs for collection, and notice of this fact was received by the defendants from the. bank at Baxter. Defendants delayed to attend to the notice of the bank at Bax ter, and when one of the defendants finally called at the bank to pay the same, he was informed the draft had been returned the day before. A. J. Hunt then obtained exchange on St. Louis at the bank at Baxter, of sufficient amount to pay the draft, and sent it by express to Young, Bro. & Co., at St. Louis, Mo. The latter firm duly received this money, and gave the defendants credit for the remittance. Young, Bro. & Co. suspended business in July 1873. The draft was protested for non-payment, March 3d 1873. In the court below, a verdict was rendered for the defendants, judgment given accordingly, and the case is here upon exceptions to the instructions of the court. The second instruction reads as follows:
“If however you find the truth to be, -that W. W. Young, Bro. & Co., the original payees, simply indorsed thé draft to the plaintiff for collection, with authority or directions to apply the proceeds when collected to the account which the plaintiff had with the said Young, Bro. & Co., the plaintiff holding and accepting the paper under such circumstances became but the agent or trustee of the said Young, Bro. & Co.; and any defense which the defendants might suggest in answer to this action, were it prosecuted in the name of Young, Bro. & Co., is, under such circumstances, good in this action, although prosecuted in the name of the State Savings Association of St. Louis, the indorsee.”
Upon an examination of the record, we do not think there was sufficient- evidence relating to the transfer of the paper for the purpose stated in the instruction to have authorized the court to give the same to the jury. This necessarily leads us to examine the testimony upon .this subject. W. P. Young, whose deposition was taken by defendants, states:
“We drew a draft for $115 on the defendants for a bill of goods sold them. W. W. Young, Bro. & Co. deposited that draft in the State Savings Association, of which bank Charles Parsons is president, with other drafts, as collateral for W. W. Young, Bro. & Co.’s note discounted on' or about that date by the bank, which note has since been paid. Young, Bro. & Co. were customers of the bank. We were in the habit of drawing drafts on our country customers, and taking them to the bank and getting advances on them to the amount of seventy per cent. Young, Bro. & Co. would give their notes, and it was customary to pay the notes as they fell due out of the first moneys realized on the drafts. This was done by the bank with our knowledge. The bank kept what was called a collateral account with Young, Bro. & Co. Drafts were deposited with the bank, went into this account, and as fast as collections were made of drafts thus deposited, the moneys were drawn from that account and applied in payment of Young, Bro. & Co.’s notes as they matured. The acceptance sued upon in this action was placed in the State Savings Association under the above arrangements which I have described.”
On cross-examination he stated: “At the time W.W.Young, Bro. & Co. suspended business in July 1873, they were indebted to the State Savings Association about $3,100. At that time the bank held this draft for $115 against the defendants. It has never been returned to Young, Bro. & Co. The bank at that date held some other collateral besides this acceptance, out of which they have realized some money. Our indebtedness to the bank now amounts to more than the amount of the defendants’ acceptance, but I cannot give the exact amount.
“§wes. — "Was it not customary in your firm dealings with the bank, that the collaterals of which this draft in suit is one, were all held as general collaterals, and applied at maturity to any of this species of notes maturing first, and that this was without reference to any particular draft or collateral for any special notes being specially held for such special notes? Ans — Yes.
“ (¡hies — Did you not give a great many scores of these notes, secured by drafts as collateral in the way you have described ? and did not these collateral drafts amount to many hundreds? Ams.-Yes.
“Ques-Was not'the amount received from time to time by the bank, on the collateral drafts, put to your collateral account, and drawn from that account and applied to the payment of your notes as they matured, without regard to any special notes? Ans.-Yes.”
On the part of the plaintiffs the deposition of Charles Parsons, the president of the Association, was read. Parsons testified that—
“In regard to the acceptance of A. J. Hunt & Co., on bill of exchange drawn by W- W. Young, Bro. & Co. to the or der of themselves, and by them indorsed in blank, and which is the same acceptance sued on in this action, the truth is, that this paper, before its maturity, was indorsed as aforesaid to the State Savings Association of St. Louis, Missouri, for a valuable consideration advanced and paid by said Association to said Young, Bro. & Co. The transactions of the firm of Young, Bro. & Co. with the bank were numerous; but in all * instances where paper of this description was received by the bank, there was an advance of money made therefor. There was no understanding or agreement ever existing, that the bank was to be satisfied short of redemption in money of each acceptance; and neither the bank, nor any one else by its authority, nor myself, nor any one by my authority, has ever been paid the acceptance sued on. The paper is unpaid. The money advanced on it is still due. If this collection cannot be made on this acceptance, the bank will lose just that much money. There was no agreement or understanding that any payment to Young, Bro. & Co. was payment to the bank, or that any arrangement could be made short of lifting the acceptance by cash. The acceptance never has been lifted, or paid, and is due; (and if not paid by the acceptor in this action, the security of negotiable paper bought for value before maturity fails.) There is no other understanding about it.”
The evidence establishes the fact, that there was a present consideration at the time of the transfer. The jury might evidently have been misled by the character of the instruction. If the plaintiff had received the draft simply for collection, with authority or directions to apply the proceeds when collected to the account which the plaintiff had with Young, Bro. & Co., a different case would be presented than the one we are now considering. The plaintiff received the draft under other circumstances. There was -an advance of money made therefor at the time of the indorsement. Young, Bro. & Co. did not indorse the paper for collateral security, as a mere volunteer service. The plaintiff accepted it with its burdens and benefits. It is settled, that when a bill of exchange of a third party, payable to order, is indorsed as collateral security for a debt contracted at the time of such indorsement, the indorsee is a bona fide holder for value in the usual course of business. Upon the facts, the plaintiff was neither the agent nor trustee of Young, Bro. & Co. In the absence of proof to sustain the instruction, the rights of the plaintiff may have been prejudiced. We cannot say therefore that the error was immaterial. It may have induced the verdict for defendants. In this opinion, we have pur■posely refrained from deciding whether, or no, the instruction commented upon, as an abstract proposition, is good law. Eor the purpose of'this case, it is sufficient to say that it is not applicable to the facts proved, and may have been detrimental to the rights of the plaintiff.
The judgment must be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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FIRST OPINION.
The opinion of the court was delivered by
Valentine, J.:
About the only thing complained of in this case is, that the court below did not give sufficient attention to the amended answer of the defendants below, plaintiffs in error. Now when this amended answer was filed the case stood upon petition, answer, and reply, and the time for filing an answer had long previously passed. The amended answer appears to have been filed out of time, without leave of the court or judge, and without the consent of the plaintiff. It was therefore proper for said court and judge to treat said amended answer as a nullity. (Luke v. Johnnycake, 9 Kas. 511.) We think no error was committed by the court below. Certainly none is shown by the record brought to this court.
The judgment of the court below is affirmed.
All the Justices concurring.
SECOND OPINION.
Valentine, J.:
It seems that after this case had been brought to this court the plaintiffs in error discovered that the record of the proceedings of the court below (a_ copy of which they filed with their petition in error in this court,) did not show that they had any right or authority to file their said amended answer in the court below. They therefore applied to the court below, and on their motion obtained an order from that court directing an entry nune pro tune of an order showing that they had obtained leave of the court below to file said amended answer at the time they in fact did file it. They then brought a copy of said nune pro tune entry to this court, and moved this court for leave to amend their original transcript by incorporating this nune pro time entry into it and making it a part thereof. This motion was taken under advisement by the court. The parties then submitted the .entire case to the court for decision on its merits, and the court took the whole case under advisement. Afterward, when the court came to consider the case it entirely overlooked the motion of the plaintiffs in error to amend their original transcript, and considered the case without examining said nune pro tune entry. We shall now reconsider the case, and shall consider it as though said nune pro time entry were in fact incorporated into the original transcript and- constituted a part thereof. And therefore we shall consider the case as though the plaintiffs in error, defendants below, had full authority to file their said amended answer at the time they filed it. And taking this view of the case, did the court below commit any error? The petition showed that the note and mortgage were executed for the sum of $4,200, with interest at the rate of 12 per cent, per annum, and a stipulation for $400 as attorney-fees in case of foreclosure. The amended answer admitted the execution of the note and mortgage as alleged in the petition, but it alleged that $275 of the said sum of $4,200 was for usurious interest. This was the only new matter alleged in the amended answer, and therefore» the only matter alleged therein that needed a reply to put it in issue. No reply was however filed to the amended answer. After said amended answer was filed the defendants below moved the court for judgment upon the pleadings; but upon what grounds this motion was made, is not shown. . It could not have been made upon the ground however that no reply was filed to said amended answer; for, ignoring everything but the petition and amended answer, and upon these pleadings alone the defendants were not entitled to judgment, but on the contrary the plaintiff below was entitled to a judgment for $3,925 principal, with interest, and $400 attorney-fees, and costs, and for a sale of the mortgaged property, etc. It will be remembered that the original answer was replied to. Said motion was overruled, and no exception was taken thereto. The case was then submitted to a jury for trial. What the evidence was we cannot tell, for none of it seems to have been preserved, and no question seems to have been raised upon its introduction. From the instructions however, given and refused, and the defendants’ motion for a new trial, we would infer that the sole question litigated before the jury was whether the defendants received $3,925, or $4,000, as the consideration for their said note and mortgage. The sole contest before "the jury seems to have been whether $75 of the amount included in said note.and mortgage was for usurious interest or not. Now this question could be raised before the jury only by the said amended answer, and a supposed reply thereto. No other pleadings raised it. The amended answer set forth that $275 of the amount included in the said note and mortgage was for usurious interest. But it would seem that on the trial plaintiff admitted that $200 of that amount was for usurious interest, and therefore contested with the defendant only as to whether the other $75 of that amount was for usurious interest. The court instructed the jury among other things as follows:
“The plaintiff claims the consideration to have been.$4,000. The defendants claim that it was $3,925. The only question for you to decide is, how much did defendants receive as the consideration for said note ? When you decide that from the evidence, you will find your verdict for the plaintiff for that amount, with interest from the date of the note at the rate of 12 per cent, per annum, to which you will add the sum of $400 as attorney-fees, and find that the plaintiff has a lien on the land for that amount.”
No exception was taken to this instruction, nor indeed to any instruction given by the court. And the record does not affirmatively show that all the instructions given have been brought to this court. The defendants asked to have certain instructions given. These instructions show beyond all question that the defendants considered that all the allegations of their amended answer were in issue. These instructions were refused, and the defendants excepted. This is the first exception taken by the defendants below, plaintiffs in error. Whether these instructions should have been 'given or not, we can hardly tell. We are inclined to think that the substance of them, as far as they stated the law of the case, was embodied in the instructions already given. But further than this: none of the evidence in the case is brought to this court. (Ed. Assoc. v. Hitchcock, 4 Kas. 36; Auld v. Kimberlin, 7 Kas. 601; Leroy v. McConnell, 8 Kas. 273; The State v. Herold, 9 Kas. 200.) And we are not informed affirmatively that all the instructions given are contained in the record. So far as we have the means of determining, we should think that the court below did not err in refusing said instructions.
The jury found a verdict in favor of the plaintiff and against the defendants for $5,026.66. This sum is composed of $4,000 received by the defendants as the consideration for said note and mortgage, $626.66 interest thereon, and $400 attorney-fees. This sum is just $75, with interest thereon, more than the defendants virtually admitted to be due to the plaintiff by their pleadings. The defendants then moved the court for a new trial upon the following grounds, to-wit: “1st, The refusal of the court to render judgment for the defendants on the pleadings; 2d, Error in giving instructions; 3d, Error in refusing instructions; 4th, The jury erred in finding for the plaintiff; 5th, The verdict of the jury is excessive.” We have already considered the first, second, and third of the above-named grounds, and find no error. The fourth and fifth grounds yet remain to be considered. These go to the finding of the jury. Now whether the jury erred or not in their findings, we cannot tell, for we do not ■ know what the evidence was. The court below overruled the motion for a new trial, and the defendants excepted. This is the second and last exception taken by defendants below. We do not think that the court erred in overruling said motion for a new trial. The court below then rendered judgment upon the verdict of the jury, and in accordance with the verdict. We do not think the court erred in this. The only ground upon which plaintiffs in error can make the slightest claim of error is that the verdict and judgment were for $75 and for interest thereon greater than they ought to have been, but the question whether the defendants received that $75, and whether they should pay the same back to the plaintiff with interest, was fairly submitted to the jury, and the jury found against them. The only answer to this that plaintiffs in error could make is, that this question should not have been submitted to the jury; that the defendants’ amended answer alleged that said $75 (along with $200 more for which verdict and judgment were not rendered) was never received by defendants, but was merely usurious interest, and that said amended answer was not replied'to. Now it is true that said amended answer was not replied to, but still the case was tried in every respect' the same as it would have been tried if a reply had been filed to the amended answer; and therefore we think the defendants waived a reply. (Wilson v. Fuller, 9 Kas. 177, 189, 190; Clement v. Hayden, 4. Penn. St. 138; Hubbert v. Collier, 6 Ala. 269; Clark v. Stoddard, 3 Ala. 366; Tyson v. Richard, 3 Harris & J. 109.) The attention of the court below was at no time specifically called to the fact that no reply had been filed to the amended answer. And there is nothing in the whole case that shows that the plaintiff ever knew, until said nunc pro turne entry was made, that said amended answer was filed with leave of the court, or that it had any force or validity as against the will or wishes of the plaintiff. At the time of the trial the amended answer appeared, so far as the record shows, to have been a nullity. And possibly the plaintiff may have thought that by going to trial as though the amended answer was not a nullity she herself was doing all the waiving of rights that was done in the case. And now under all the circumstances of this case, would it be fair to say that the plaintiff was bound to know that said amended answer had force and validity, although from the record it appeared to be a nullity, and that she was bound to reply to the same or be treated by the supreme court as in default when she was not treated so in the district court either by the court or the defendants? And would it be fair, after the defendants have taken the chances of a trial upon the truth of the allegations of their said amended answer, that they should now be allowed to raise the question for the first time in the supreme court that no reply had been filed to such answer? As the court below allowed the defendants to file an amended answer out of time, without any showing, and without any terms being imposed, the court would undoubtedly have allowed the plaintiff at any time to file a reply thereto upon a bare suggestion of its necessity to put the allegations of the amended answer in issue. If it be claimed however that this suggestion should have come from the plaintiff, then it may be answered that there is nothing in the record that shows that the plaintiff ever knew that said amended answer had any validity until said nunc pro tune entry was made long after trial and judg ment. We think under all the circumstances that the suggestion of a necessity for a reply should have come from the defendants; and as it did not, that the defendants waived the reply.
The judgment of the court below will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The plaintiffs in error make the following statement of the case, to-wit:
“Owen E. Seip, defendant in error, brought this action against the plaintiffs in error jointly, alleging in his petition that he entered into a contract on August 1st 1873 with said Daniel O’Keef as agent of said Nannie to furnish materials and construct a building for her on a certain lot in the city of Atchison, for which plaintiffs in error were to pay defendant in error the sum of $1,265 upon completion of the same; that said building was completed on November 16th 1873; that there has been paid to defendant in error thereon the sum of $1,000, and there is due the sum of $265, with interest thereon from said November 16th 1873, at twelve per centum per annum; also describing the premises upon which said building was erected; and alleging that, at the time the contract was entered into and the building constructed and notice of lien filed, the premises were the property of said Nannie, and were occupied by plaintiffs in error as a homestead; that on 13th March 1874, said Seip filed with the clerk of the district court a notice of a lien on said premises for the said indebtedness, specifying plaintiffs in error as the persons against whom the claim was made, and that they were the owners of said premises. A copy of the' notice of lien was attached to the petition as a part thereof. And as another cause of action, there is a claim in the petition for extra work and material made against plaintiffs in error to the amount of $15, which it is alleged they promised to pay; but this amount, it is alleged, was by neglect of Seip not included in his notice of lien. In the petition, judgment is prayed against both of plaintiffs in error for $280, with interest thereon at twelve per centum per annum from November 16th 1873, and that the sum of $265 be declared a first lien on said premises, and that the same be sold to pay said lien and costs of action. To this petition answer was filed, stating in substance thfit the building was not completed within the time nor according to contract, and was not completed at the date of answer, and was not completed on November 16th 1873; that by the terms of the contract the price agreed upon for the construction of the building was $1,250; the building was to be completed according to certain plans and specifications, and to the satisfaction of the architect, and was to be completed within sixty days from August 1st 1873; the payments were to be $500 in advance, $500 upon the completion of the work, and $250 in eight months after the building was completed; that the first sum was paid in advance by said Nannie O’Keef, and that at the request of Seip she also paid the further sum of $527 before the completion of the building. ' The answer .denies the claim for extra work; and also denies all indebtedness to Seip, and claims damages by reason of non-compliance with the terms of the building contract, in the sum of $300. The answer prays that the pretended lien be declared of no force or effect, and as utterly void, and for judgment for interest on money paid before due, and for damages. To this answer a reply was filed, in effect a general denial of the answer.
“The case was at issue, and upon the trial-docket at November term 1874, of said district court; but up to December 1st had not been called or set for trial for any particular day; but about four o’clock p.m. of said last-named day, the case was peremptorily set for trial December 3d, at nine o’clock A.M. Before this time the court had been for some two weeks continually engaged in one case; and the court had announced publicly to the bar, and to suitors generally, at different times, that the next case to be called and tried after the one on trial would be an important criminal case which had before been tried in this court, and occupied about two weeks’ time. This criminal case was by consent continued, and the case, at bar was then called and set for trial by the 'court. On the morning o.f December 3d, when the case at bar was called for trial, the attorney for plaintiffs in error stated to the court that he was unable to go to trial, and that plaintiffs in error were unable to present their defense, owing to the fact that said case was set in their absence, and that they were then out of the county and state: that said attorney, on first receiving notice that the case at bar was set for trial had filed precipe for witness in their behalf; that subpoenas had been issued, but not returned served, although placed in the hands of the proper officers for service; that said attorney had telegraphed to his clients, who were in St. Joseph, Mo., but no reply had been received up to such time; that witnesses for his clients had not appeared, and said attorney requested a short delay; but the court called said case and immediately impanneled a jury, and then waited about two hours. Seip introduced his testimony, which consisted in producing himself as a witness, and one Henry Luth. All the evidence is contained in the record. After the evidence was closed, said attorney again stated to the court that his clients had not yet arrived, but were expected; that the process which had been issued for their witnesses had not yet been returned, nor had such witnesses been in court, but were expected. The case was held open about two hours.
“When the said attorney got up to present and argue the case to the jury, the court stated that no argument was necessary, and refused to permit any argument whatever, but without any argument the court directed the jury to find a verdict in favor of the plaintiff (Seip) against both defendants for the sum of $299.60, and directed the attorney for Seip to prepare a verdict to be signed by one of the jury, which was then written out by said attorney. Said verdict is in the record. The court then handed the same to one of said jury, and directed him to sign the same as foreman, which was done without the jury retiring. This verdict was signed and received by the court, and forms the basis of the judgment reidered herein. A motion for new trial was filed, and supported by affidavits. The affidavit of I). C. O’Keef showed, that at the time the case at bar was set for trial he was in the city of St. Joseph, Mo., where he had been called on urgent and important business; that the day he started away it was announced by the court that the case of The State of Kansas v. Smith would be tried, and he was informed by his attorney and the attorneys in said criminal case that the Smith case would certainly be tried, and would follow the case then on trial, and that the said criminal case • would take at least one week in the trial thereof; that on these statements he left for St. Joseph, and was not in Atchison when the case at bar was set for trial; that he did not receive the telegram sent by his attorney; and he stated that there was a good and valid defense to whole of the said claim: that the affiant never incurred any obligation with said defendant in' error. The affidavit of Nannie O’Keef, stated in substance, that she never held any conversation with Seip (since he stopped work on the building in question) with regard to the contract, nor did she at any time acknowledge that she was indebted to him, and was never notified by him that the building was claimed to be finished until July 15th 1874; that Seip abandoned the contract about October 15th 1873; that after July 15th 1874, he did some work on the contract; that she never received said building as finished, and same has never been finished. The affidavit of Seip was also filed in opposition to the motion for new trial. The counter affidavit of D. C. O’Keef was also filed, stating in substance that he was not in the court-room when the case at bar was set for trial, but was in St. Joseph, Mo.; that he never at any time told defendant in error that he would consent to have the same taken up and tried on the day the same was tried, and denying particularly the affidavit of defendant in error; also showing that his absence was unavoidable.
“The motion for new trial was presented, and all of said affidavits read and used on the hearing thereof. The court overruled the motion for a new trial, and ordered, judgment to be entered in favor of Seip, and directed the clerk of said court to enter in the record of said court, following the entry of said verdict, a statement or finding —
“That the court further finds that the proper proceedings were had to obtain the benefit of the mechanic’s-lien law for the amount due under the contract 'sued on, and that the same was secured by a mechanic’s lien on s‘aid lot 14 in block 93. * * *
“Thereupon it is considered and adjudged by the court here, that the plaintiff, Owen E. Seip, have and recover of and from the said Nannie O’Keef as well the said sum of $283.50, and that the said lot 14, block 93, Old Atchison, in the county of Atchison, stand charged with the payment, as also his costs, and that he have execution hereof.
“And the court further finds that included in the amount found by the jury, to-wit, $299.60, there is the sum of $15 taken in consideration by said jury that was for extra work and materials furnished by said plaintiff to said defendants, which was not in said contract, and on which no mechanic’s lien vested. It is therefore considered and adjudged by the court here, that the said plaintiff have and recover of and from the defendant Nannie O’Keef, as well the said sum of $15 so as aforesaid found due, and deducted from the sum total of the verdict of the jury, and that he have hereby execution for the same.
“And the court further finds that this action is founded on a contract for the building of a certain brick dwelling-house situate on lot 14 in block 93 in the city and county of Atchison, state of Kansas, and that the amount due to plaintiffs from said defendants for the erection of said building is the sum of $283.50, and the same is secured by.mechanic’s lien.” [Here follows an order, that if said sum of $283.50 remain unpaid for sixty days, an-order issue for the sale of said premises.] “And it is further ordered* and decreed that all equity of redemption of the said Nannie O’Keef and Daniel O’Keef, all right of dower of the said Nannie O’Keef .of, in and to the aforesaid premises be and the same is hereby forever barred and foreclosed from and after said sale.”
The foregoing is taken from the brief of counsel for plaintiff in error. All the issues in this case seem to have been submitted to the jury; and the jury seem to have found generally upon all such issues, in favor of the plaintiff below, and against the defendants below. Their verdict is as fol lows: “We the jury duly impanneled, tried, and sworn in the above entitled cause, do, upon our oaths, find the issues for the plaintiff, and assess his damages at two hundred and ninety-nine and 66-100 dollars.” This $299.66 is evidently the $265.00 claimed by the 'plaintiff for labor and material under the contract, the $15.00 claimed' for extra work and material, and $19.66 interest on said sums, at seven per cent, per annum for one year and a few days; for this is just what the plaintiff was entitled to recover under his petition if all the allegations thereof were true. Upon the foregoing verdict it was competent for the court below to render whatever judgment the petition would sustain. And we think the petition will sustain just such a judgment as was actually rendered. Where the jury by their general verdict find everything in favor of the plaintiff, and neither party has asked that they shall make any special findings, the court may properly render judgment on the verdict, in accordance with the special facts as alleged in the plaintiff’s petition, although such special facts are not specifically mentioned in the verdict.
That the petition would sustain a personal judgment in favor of the plaintiff below and against Nannie O’Keef for the amount found by the jury, we think there is no room to question. Whether it would sustain a personal judgment in favor of the plaintiff below and against Daniel C. O’Keef for any amount, we need not determine, for no such judgment was rendered. Whether it will sustain the judgment for the sale of the house and lot, and for applying the proceeds thereof in payment of the money judgment, is perhaps the only question that we need to consider in this connection. The determination of this question depends wholly upon the sufficiency of the allegations of the petition concerning the mechanic’s lien. The petition shows that the house was built upon contract with Daniel C. O’Keef, as agent for Nannie O’Keef, who owned the lot upon which the house was built; that the plaintiff was to receive for building said house $1,265; that he did receive $1,000 of that amount; that the balance thereof, to-wit, $265, became due November 16th 1873, and still remains due and unpaid; that the .house was completed November 16th 1873, and that the notice of lien was duly filed March 13th 1874. The notice of lien shows substantially the same things, except, that while the notice (or rather the statement) was sworn to before the clerk of the district court on March 13th 1874, the same appears from the copy brought to this court, to have been filed with the clerk on March 18th 1874. The objections made to the allegations of the petition concerning the lien, we think are not sufficient; and being made for the first time in this court we think they are wholly insufficient to authorize a reversal of the judgment.
In answer to the various objections made by plaintiff in error, and the various questions raised by them, we would reply briefly as follows:' Whatever is done by an agent is done by the principal. It was not necessary that the contract should have been made in writing. “The items” of the plaintiff’s claim are set forth both in the petition, and in the notice of lien, “as-nearly as practicable.” Interest is claimed both in the petition and in the notice of lien. The petition does state that said notice “was duly verified,” and the notice itself shows that it was, even if the clerk had failed (without the fault of the party filing the notice of lien) to “enter a minute” of the same” in the “mechanic’s lien book.” Such failure would not invalidate the lien as between the original parties. Rut still we do not think that this question is properly • in the case. The plaintiff alleged the due filing of -the notice of lien; the defendants did not deny the same, but, on the contrary, substantially by the statements in their answer admitted the same. The verdict of the jury was substantially the only verdict that they could have rendered under the pleadings and the evidence. They might have made special findings upon particular issues, but still their verdict would and should have been substantially the same as it was. There was therefore no substantial error in the court instructing the jury to find as it did. No argument of counsel could or should have changed the verdict in any substantial -particular. The evidence was all in favor of the plaintiff, and was amply sufficient to-prove every allegation of the petition put in issue by the answer. And therefore we do not think that the court erred in refusing to allow any argument to be made to the jury. The matter rested in the sound discretion of the court below, and we do Dot think that the court abused its discretion.
We do not think that the court erred-or abused its discretion in setting the case for trial. The substantial portion of the judgment %as against Nannie O’Keef .alone, and there is nothing to show why she was not amply prepared for trial, or why she could not be personally present at the trial. And one of the affidavits read on the motion for a new trial states “that the said defendant D. C. O’Keef was in the courtroom on the forenoon of the day upon which this cause was set for trial, and requested- that said cause be set at the time at which' it was set.” There was no personal judgment for any amount rendered against Daniel C. O’Keef and he did not own the house or lot ordered to be sold.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
On the 10th of September 1874, Williams sold forty-eight head of steers. He claims that he sold them to the firm of Sprague & Merritt. Merritt denies that there was such a firm, or that he was a partner of Sprague, and alleges that the sale was made to Sprague, who alone was responsible therefor. The question therefore in the case was, whether Merritt was a partner of Sprague’s, or had so acted as to justify Williams in holding him as a partner, or had joined with Sprague in making the purchase. No question is made in this .court upon the admission or rejection of testimony, but error is claimed on the instructions. We shall notice but a single matter, as in that we think there was error. Both Sprague and Merritt testified that no partnership existed at the time of the purchase; that while they had at one time been partners in the cattle business, such partnership had been dissolved some eighteen months or more prior thereto. Williams lived about thirty-five miles from Ióla, in or near which both Sprague and Merritt resided. Some two or two-and-a-half years prior to this sale, and while the firm of “Sprague & Merritt” existed, Williams sold them a lot of cattle. This single sale was the only transaction between the parties prior to this controversy. It does not appear whether it was made for cash, or upon credit. Of course it cannot be presumed to have been made upon credit; and whoever would found a right upon the claim that it whs so made, must prove it. Williams testified that if the firm of Sprague & Merritt had been dissolved, he had had no notice of the dissolution, and supposed they were still partners. Was he entitled to actual notice ? and could he, for lack of it, hold both Sprague and Merritt, although the partnership had in fact been dissolved, and the dealings were had solely with Sprague? We think not. The language of the books is, that those who have been in the habit of dealing with a firm are entitled to actual notice: Collyer on Part., §533; Story on Part., §161. Can a man who has simply made one sale to it, be considered in the habit of dealing with a firm ? Does one who sells only for cash extend any credit to a firm because, of its individual partners ? Will a single transaction with a firm carry with it through all time the right to notice of a dissolution ? and must a firm run back through all the years of its existence, and give actual notice to every individual who has ever had a single dealing with it ? It may be that the number, and "character, and time of the dealings, which will entitle a party to actual notice of a firm’s dissolution, are not exactly specified, and that often it is a question for the jury whether such notice was requisite to release a retiring partner. But we think no authority can be found to sustain the necessity of notice in a case like the present. When a known partner retires, why should different notice be given to a dealer with the firm than that which is given to the public generally? Any person may know that he was a member, and any one not actually informed may be misled into trusting the firm on the supposition that he is still a member. Why any distinction ? Because he who has established a course of dealing with a firm may be supposed to have made prior inquiries as to the members of the firm, and their respective business character and standing, and gives his credit upon the faith of such inquiries and the consequent information. It is fair that that course of dealing should be continued upon the same basis of trust and confidence as that upon which it was commenced, and that he should be informed if any change is made which affects the conditions of that credit. But when no credit has ever been extended, and no occasion to make any inquiries, the reason for the rule ceases. Cessante ratione legis cessat ipsa lex. Hence, if a dormant partner retires, no notice is necessary, because no credit was ever given to the firm on account of his supposed membership in it. So also, as is said in Clapp v. Rogers, 12 N. Y. 283, “it follows that a purchase strictly for cash would not constitute a dealing within the rule, for a person selling under such circumstances would have no occasion to inquire who the partners were, or as to their responsibility.” 2 Bell’s Com. 540; Vernon v. Manhattan Co., 22 Wend. 183. In Wardwell v. Haight, 2 Barb. 549, the court declares that, “ The principle is, that credit already raised on the faith of the partnership is presumed to be continued on the same footing unless special notice of a change is given.” For these reasons, and upon these authorities, we think the jury should have been instructed that this single prior sale did not give Williams a right to actual notice of the dissolution, or to hold both partners because of a want of such notice; and that any instruction implying the contrary was wrong. For this error in giving instructions, judgment will be reversed and the case remanded for a new trial.
We of course express no opinion as to whether the firm had in fact been dissolved, or whether Merritt actually joined in the purchase. We may also remark, that acts and conduct which induce a belief in the mind of a party dealing with certain persons of the existence of a partnership between them, must, to support a finding of a partnership, be such as would induce the belief in the minds of men of ordinary judgment and prudence.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action on an account for goods sold and delivered. The action was commenced before a justice of the peace, where judgment was rendered in favor of the plaintiffs, (defendants in error.) The defendant (plaintiff in error,) took the case to the district court on petition in error, where the judgment of the justice was affirmed. The defendant now as plaintiff in error brings the case to this court, and asks to have both the judgment of the district court and the judgment of the justice reversed. Only two questions are'presented in this court: 1st, Was the judgment of the justice rendered without that court having sufficient jurisdiction of the defendant? 2d, Did the justice err in refusing to allow the defendant to plead and prove his set-off?
I. The action was commenced on February 5th 1875. A summons and order of attachment were issued, and both served on that day. The service of both would seem to be regular, from the face of the returns iflade by the officer. As to the summons, the officer returns that he served the same “by delivering a certified copy of the same to the defendant on the 5th day of February 1875, with all the indorsements thereon.” On the same day the defendant appeared in the case, and moved the court to dissolve the attachment. The grounds for this motion were, that the matters and things set forth in the plaintiffs’ affidavit as grounds for their attachment were not true in fact. On the next day this motion was heard by the court, on oral testimony, both parties appearing, and the justice found that the grounds set forth in the plaintiffs’ affidavit for the attachment were not true in fact, and thereupon the justice dissolved the attachment. On the day set for the trial of the cause the defendant appeared specially, and moved the court to dismiss the action on the ground that he had not been served with summons. This motion was heard on affidavits, and oral testimony — the plaintiff appearing generally, and the defendaút specially. From the evidence introduced it would seem that the defendant had been served with summons, but that the service was irregular. The officer showed the defendant a copy of the summons, and the defendant said it “ was all right,” and probably took hold of it, but the constable inadvertently put it back in his pocket, and kept it. If a motion had been made to set aside the service, before the defendant made any other appearance in the case, probably such a motion should have been sustained. The justice overruled said motion to dismiss the action. The defendant then moved the court for an adjournment of the trial of the case, for thirty days, on the ground of the absence of material testimony which he had been unable to procure; and he supported his motion by affidavit. The court sustained the motion, and granted the adjournment. The defendant then filed his bill of particulars. This bill of particulars did not set forth merely a defense to the plaintiffs’ cause of action, but it went beyond defenses, and even beyond counterclaims, and ■set up a cause of action, wholly independent of the plaintiffs’ cause of action, and in favor of the defendant apd against the plaintiffs. This cause of action of the defendant’s was in the nature of an action for “malicious prosecution” against the plaintiffs, for “falsely, wantonly, maliciously and without probable cause” suing out in this same action an attachment, and having the same levied on the defendant’s goods “ for the purpose of mere oppression,” etc. The plaintiffs’ claim was for $224.20, for goods sold and delivered. The defendant’s claim was for $1,000 damages for wrongfully suing out said attachment. The defendant made no defense to the plaintiffs’ claim, but admitted that the same was correct, and then asked that one claim be set off against the other to the extent of the plaintiffs’ claim, and then that he, the defendant, hiive judgment for $300, a part of the overplus, and the full amount to which a‘justice’s jurisdiction extends. The plaintiffs demurred to the defendant’s bill of particulars. Both parties appeared and argued the demurrer. The court sustained the demurrer. Now after all this transpired, can it be said that the justice did not have sufficient jurisdiction of the defendant to render judgment against him ? Any voluntary appearance of a party to an action which recognizes the general jurisdiction of the court, or which is not made for the special purpose of contesting the jurisdiction of the court, or for any other special pui’pose, will be construed to be a general appearance in the case, and will be held to give the court general jurisdiction in the case of such party. Cohen v. Trowbridge, 6 Kas. 385, 393; McBride v. Hartwell, 2 Kas. 411, 415; 1 U. S. Dig., first series, 101, 103, paragraph 580, et seq.
II. We think the justice rightfully held that the defendant’s set-off could not be set up in this action. 1st: It had no existence at the time this action commenced. A defense to an action may be set up and used, although it may not have accrued until after the action was commenced. But this is not a defense. 2d: The defendant does not .claim that his supposed set-off is a counterclaim, and it is not. It has no connection with the “foundation” or “subject” of the plaintiffs’ action. (Civil Code, § 95.) 3d: Neither is his supposed set-off, a set-off. A set-off “must be a cause of action arising upon contract, or ascertained by the decision of a court.” (Civil Code, § 98.) There is no pretense in this case that the defendant’s set-off is. founded upon any contract, or upon the decision of any court. It is founded purely and entirely upon a tort. The plaintiffs of course gave bond when they obtained said attachment. The bond in this case was for the sum of $500. But the defendant did not found his set-off upon said bond. He entirely ignored the bond. ’ He did not even mention the bond in his bill of particulars. It would seem from the amount he claimed that he thought the bond was too small to cover his damages.
The judgment of the court below must be affirmed.
Brewer, J., concurring.
Horton, C. J., not sitting in the case. | [
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Per Owriam:
The motion for a mandamus must be overruled, in accordance with the decision of this court in the case of The State, ex rel. Goodin, v. Thoman, Auditor, &c., 10 Kas. 191. In that case we held, that the term of office of judges of the district courts was fixed by the constitution at four years; that it was not in the power of the legislature to extend or lengthen that term, either directly or indirectly; and that when a district judge was legally elected at the general election in 1867, for a full term, an election for a successor, and for a full term, was rightly held in 1871 — such second term commencing in January 1872. In the case at bar, the facts alleged in the petition show, that the failure to hold an election in the ninth judicial district in 1871, did not change the commencement of the regular term of office of judge for that district. • Nor did ch. 117 of the laws of 1872 have that effect, for the reason above stated. It also follows, that when Judge Brown was reelected in November 1872, he was chosen for the unexpired portion of that term which had commenced on the second Monday of January preceding. Resigning before such term expired, the'vacancy was filled by executive appointment., Whether at the election held in November 1875, the then remaining unexpired term of two months should have been filled by election, as well as that a judge should be then so chosen for the full term next ensuing, we need not now discuss. (Const., art. 3, § 11.) No such election is shown to have been held. The petition shows that a judge for the ninth district was duly chosen at such general election of 1875, and we hold that the person so elected was elected for the term of four years from the second Monday in January 1876. No vacancy having since occurred in such office, no election for judge of said ninth district could be legally held in November 1876, and the board of state canvassers rightly refused to canvass the votes cast in and returned from such district for such office.
Mandamus refused. Judgment will be entered in favor of the defendants for their costs. | [
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The opinion of the court was delivered by
Brewer, J.:
Can a second mortgagee plead usury in a prior mortgage? Can he do it either to defeat, or postpone, the lien of such prior mortgage? Authorities are well divided on this question. That he can, is affirmed in Indiana, Pennsylvania, Ohio, New York, Maryland, and New Jersey. Cole v. Bausemer, 26 Ind. 94; Green v. Tyler & Co., 39 Penn. St. 361; (though under the present statute the opposite ruling seems to obtain; Miners Trust Co. v. Roseberry, 2 Law & Eq. Rep. 478;) Union Bank v. Bell, 14 Ohio St. 200; Brooks v. Avery, 4 Comstock, 225; Post v. Dart, 8 Paige, 640; Banks v. McClellan, 24 Md. 62; Cummins v. Wire, 6 N. J. Eq. 73. That he cannot, is affirmed in Alabama, Connecticut, Illinois, Iowa, Kentucky, Michigan, Missouri, and Vermont. Cain v. Gimon, 36 Ala. 168; Fielder v. Varner, 45 Ala. 429; Loomis v. Eaton, 32 Conn. 550; Adams v. Robertson, 37 Ill. 45; Powell v. Hunt, 11 Iowa, 430; Huston v. Stringham, 21 Iowa, 36; Carmichael v. Bodfish, 32 Iowa, 418; Campbell v. Johnston, 4 Dana (Ky.) 177; F. & M. Bank v. Kimmel, 1 Mich. 84; Ransom v. Hays, 39 Mo. 445; Austin v. Crittenden, 33 Vt. 553. These last two cases were not mortgage cases, but the decisions plainly indicate the judgments of the courts upon the question. See also, 3 Parsons on Cont. 122; Ladd v. Wiggin, 35 N. H. 421; De Wolf v. Johnson, 10 Wheat. 367; Green v. Kemp, 13 Mass. 515. We incline to the latter view, and to regard the plea of usury as a personal privilege. When the parties to a contract are willing to abide by its terms, why should one, not a party thereto, be permitted to interfere? If the debts were unsecured, no one would think that the second creditor had any right to interfere. The payor, by payment of the first note according to its terms, and without insisting on any plea of usury, might so diminish his means as to render himself unable to pay the second note, but still that would not give the holder of the second the right to restrain such payment. And the rule would be the same if the securities for .the two notes were separate and distinct. Why then should the mere giving of a single security for the two notes enable the holder of the second to interfere? And a mortgage with us, it will be borne in mind, conveys no estate in the land, but is simply a security for the debt. Chick v. Willetts, 2 Kas. 384. The second mortgagee, it is true, could increase the value of his security by diminishing the amount of the first lien; but he does so only by preventing parties who have made a contract, and are willing to abide by its terms, from complying with that contract. When the first mortgage was given, the land-owner had a perfect right to give it. The land stood charged with the lien as he placed it, and no one but he could question the validity of the lien for the entire amount. He still remains willing to abide by the terms of that contract; willing that the land should be held for the face of the note. The taking of the second mortgage was a voluntary matter. The mortgagee finds the property charged with a mortgage, pledged therefor as security for a specified amount, finds that the mortgagor intends that it shall be used in discharging that amount of indebtedness, and voluntarily takes the property thus burdened, as security for his own debt. It is with ill grace that he thereafter endeavors to prevent the mortgagor from complying with his first contract. Yet, even those who' are loath to break their own promises, are often willing that others shall, if thereby. their own interests are promoted. Surely, a man ought to have a right to say whether he shall keep his own promise or not. In the enactment of laws, usury laws as well as others, the legislature has regard to the general interests, the welfare of the majority. Its laws therefpre often bear hardly in individual instances. And while it may be generally true, that a limit to the amount to be paid for the use of money should be fixed, yet every dne knows that sometimes such amount is not what in justice and fairness ought to be paid. Men feel honorably bound to pay more than the law authorizes. While the law ought to protect the party from the clamps of the usurer, by permitting him to repudiate all but the legal interest, yet, if the bor-. rower feels in honor bound by the peculiar circumstances of his loan to pay the stipulated interest, it would seem as though no stranger to the transaction should be permitted to interfere.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action in the district court of Dickinson county, to foreclose a mortgage. A decree was entered, and sale made. James Hoffmire, the grantee of the mortgagor, and who held the fee at the time of the foreclosure, is the only party complaining here. On the sale, the property realized more than the claims against it. Upon confirmation of the sale the district court ordered that the surplus be paid over to Hoffmire as the owner of the fee, and it was so done. Having received such surplus, can he now question the sufficiency of the proceedings? We think not. A party cannot voluntarily appropriate the benefit of judicial proceedings, and at the same time maintain an action to have them set aside. Take the present case: Suppose on the examination of the record it should appear that there was error in the decree, or sale, and a reversal should be ordered: the money which the purchaser paid would be in Hoffmire’s possession, while the purchaser would have nothing. The only right which Hoffmire had to take the money, rests upon the assumption that a valid sale had been made. He cannot act upon that assumption, and at the same time deny its existence. Babbitt v. Corby, 13 Kas. 612.
The motion to dismiss will be sustained.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The substantial question in this case is, whether the district court abused its discretion in refusing to open up a case and permit the plaintiff to offer further testimony after it had sustained a demurrer to the evidence. The facts are these: Pláintiff in error, plaintiff below, brought an action to restrain defendant from cutting down telegraph poles or interfering-in any manner with plaintiff in the operation of its railroad and telegraph line on a strip one hundred feet in width across the defendant’s land. The petition, which was used as an affidavit on application for a temporary injunction', and which therefore stated the facts very fully, and much in detail, alleged the organization of the company, that the land at one time belonged to one Howard, and that while so owned by him he conveyed by deed the right-of-way to plaintiff, that the deed was never recorded, and was burned up in a fire at St. Joseph, the subsequent conveyance by Howard to Dryden, also the construction of the road and telegraph line over this right-of-way, also facts tending to show a knowledge by defendant of plaintiff’s construction of the road over his land, and an acquiescence therein', and an estoppel on him, and also, further, that he had cut down some telegraph poles on said land, and was threatening to cut down any that might be replaced thereon, etc. To this an answer was filed, deny ing all the allegations of the petition except the existence of the corporation plaintiff, and that Howard was at one time the owner and the grantor to defendant. To this answer an affidavit was attached verifying the denial of the execution of any conveyance of the right-of-way by Howard to plaintiff. On the trial plaintiff introduced testimony tending to show the execution of a conveyance of the right-of-way, and its destruction by fire, also tending to show an estoppel on defendant, but nothing showing any interference or threat of interference by defendant with plaintiff’s possession or use of the right-of-way, and then rested. It is true, that there was testimony that Dryden said that the plaintiff had no right-of-way over his land, that he was going to have the right-of-way adjusted, and to have damages; but no hint of violence, or threat of violence.
A demurrer to the evidence was filed, and sustained. The plaintiff then asked leave to open the case, and introduce testimony to show defendant’s interference and threats, but the court refused permission. It then moved for leave to dismiss the action without prejudice, but the court overruled the motion and rendered judgment in favor of defendant fpr costs. That the court properly sustained the demurrer, is clear. The gist of the action was to restrain the defendant from interfering with plaintiff’s possession and use of the right-of-way, and there was no testimony to show that he ever had interfered, or ever threatened or was likely to interfere. Hence the plaintiff’s cause of action was not made out. There was a total failure of evidence on one material point, and the demurrer therefore was properly sustained. The motion to dismiss without prejudice was also properly overruled, (Laws 1872, p. 329, § 1.) Where a demurrer to the evidence is sustained, the- case is ready for judgment. It has been finally submitted to the court, and the plaintiff has no more right to dismiss then than he has after a verdict is returned. The case is decided, and the plaintiff has no right to avoid that decision by a dismissal. There is therefore but the single question stated in the opening. Did the court abuse its discretion in refusing to open the case and permit further testimony?
That the court has power, ^ ~ ♦ alter a case is closed, to open it lor further testimony, will be conceded; but it is a matter resting in its sound discretion whether it will do so. Neither party has a legal right to have it done. Before then this court will reverse the action of the district court in such a case, it must appear from the record that there was an abuse of that discretion. Swartzel v. Dey, 3 Kas. 244. The presumption in the silence of the record will be in favor of the ruling. But no showing of any kind whatever was made on the application for leave to open the case and offer further testimony. We know not why this further and needed evidence was not offered before the plaintiff rested. Was it because it had no such testimony present? Was it merely saving a point for error? Did it consider the testimony immaterial, and purpose simply to ask a decree quieting its title to the right-of-way? Had any interference, or threat of interference in fact, been made, or had the plaintiff simply been misinformed when it filed its verified petition? Can we in the absence of any showing’ upon these and other points hold that the court abused its discretion in refusing to open the case? It is true, in the motion for a new trial it is stated that the plaintiff was misled by the declarations of defendant’s counsel, and also by the ruling of the court in relation -to the issues. The only evidence in support of this is to be found in this extract from the bill of exceptions, showing what took place immediately prior to plaintiff’s resting its case:
“ Plaintiff then offered the records of the company to prove the change of name of the company, and that defendant was a director, and had managed the construction of the road over the land after he owned it.- To this defendant objected, stating it was not necessary, as they had not denied anything under oath but the deed of Howard, and that it was unnecessary to prove what was not denied. Defendant then read the affidavit of defendant to his answer to show what was denied. The court then refused to permit plaintiff to read from the records, saying it was unnecessary to prove matters that were not denied, and were admitted. To this the plaintiff at the time duly excepted. Plaintiff then rested.”
It cannot be denied that there seems to be some foundation for the plaintiff’s claim, that it was misled by the declarations of counsel, and the ruling of the court. Indeed, it is quite doubtful in our minds whether the case is not one calling for our interference. And yet, after a careful examination we are constrained to say that there is not enough to overthrow the presumption in favor of the court’s ruling. The statement of defendant’s counsel is not an admission of a fact or facts, or a waiver of proof, but rather an expression of an opinion as to the coustruction of a pleading. The terms of this answer were as fully known to one counsel as another. It was' not a long, complicated pleading, but as short and simple and clear as language could make it, a general denial excepting a couple of facts. The statement of counsel was not in reference to the matters concerning which plaintiff omitted to offer testimony. And especially there is no evidence that the plaintiff was actually misled in this matter. It may have been misled; the circumstances were such as might easily have misled. But then the omission may have been intentional, or from any of the reasons heretofore suggested. Which was the truth, was not shown. We can- only infer; and it is a fact which should have been positively shown. If the court had sustained the application, we might fairly have said that it was satisfied from all the circumstances, (those countless matters which can never be written down and placed upon record,) that the plaintiff was misled. As it overruled the application, we are compelled, to think that it was likewise satisfied that the plaintiff was not misled. More than this: plaintiff is in possession, and having, the use of the right-of-way. This decision is no adjudication, or at least can be shown from the whole record to be no adjudication against its right to the possession and use. If Dryden wishes to recover possession, he will have to establish his right by other evidence than this judgment. He may be relieved from liability for any prior trespass, but he is not thereby given license for future wrong. Taking everything into consideration we, though with grave doubts, shall affirm the judgment.
Kingman, C. J., concurring. | [
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The opinion of the court-was delivered by
Brewer, J.:
But a single question is presented by counsel for plaintiff in error, and that, it seems to us, is clearly covered by decisions already made in this court. March 21st 1872, was the time for filing a reply. It was filed the next day. Judgment was not entered until December 1874. When called for trial at that time the defendant moved to strike the reply from the files, because filed out of time. The court overruled the motion, and this is the error complained of. It also appears that the case was continued by consent, at the fall term of 1872. At the fall term of 1873, judgment was by agreement of the respective attorneys rendered in favor of the plaintiff, as appears from the minutes of the judge upon the trial docket, though no entry thereof appears on the journal of the court. Was the plaintiff in error prejudiced by the ruling of the court? Clearly not. The reply had stood unchallenged for nearly three years. The parties had once consented to judgment. If no reply had been filed, it would scarcely seem an abuse of the court’s discretion, if it had permitted one to be filed. A fortiori, there was no abuse in permitting one already filed to remain. See upon the power of the court in respect to filing of pleadings, Douglas v. Rinehart, 5 Kas. 392; Davis v. Wilson, 11 Kas. 74; Taylor v. Hosick, 13 Kas. 518; Clark v. Spencer, 14 Kas. 398; Hobson v. Ogden, 16 Kas. 388.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Price, J.:
This was an action to recover the price of liquid cattle feed sold and delivered by plaintiff to defendants. Defendant Donald Alexander’s demurrer to plaintiff’s evidence was sustained. The action proceeded against the other defendant, J. T. Alexander. At the close of all the evidence, upon plaintiff’s motion, the court directed a verdict in favor of plaintiff, and judgment was entered accordingly. Defendant J. T. Alexander has appealed from that ruling.
The pleadings require only brief mention. The petition alleged that between May and December of 1961 plaintiff sold and delivered the liquid cattle feed to defendant at an agreed price, and an itemized account showing the amount of sales and the balance due was attached thereto. The answer, although admitting the sales, raised certain alleged breaches of the agreement between the parties as a partial defense, and also claimed certain credits by way of set-off.
The action proceeded to trial before a jury, and, as above stated, the court, at the conclusion of all the evidence, sustained plaintiffs motion for a directed verdict.
Questions involving a ruling on a motion for a directed verdict usually arise in an appeal by a defendant from an order denying his motion for a directed verdict, or else in an appeal by a plaintiff from an order sustaining a defendant’s motion for a directed verdict. Here, however, the appeal is by defendant from an order sustaining plaintiffs motion for a directed verdict.
In reviewing the propriety of an order sustaining a motion for a directed verdict, the applicable rule, irrespective by whom invoked, is the same as that with respect to a demurrer to the evidence, that is — all facts and inferences reasonably to be drawn from the evidence are to be resolved 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. But where no evidence is presented, or the evidence presented is undisputed and is such that reasonable minds could not accept it as sufficient to establish the existence of a fact, it becomes the duty of the court to remove the issue from the jury. (Casement v. Gearhart, 189 Kan. 442, 444, 445, syllabi 1 and 2, 370 P. 2d 95, and cases cited.)
Applying the rule to the present case, the question presented amounts to this:
Was defendant’s evidence, resolving all inferences to be drawn therefrom in his favor, such that reasonable minds could reach different conclusions thereon? In other words, construed most favorably in his behalf, did his evidence constitute a defense, either as a matter of law or fact, to the claim and evidence of plaintiff? If it did, then plaintiffs motion for a directed verdict should have been denied and the matter submitted to the jury.
No new or novel question, either of fact or law, is presented by this appeal, and detailed discussion of the evidence would be of interest only to the parties involved. Examining the record, it is clear that plaintiff’s evidence fully established his claim, and it is equally clear that defendant’s evidence either admitted all of plaintiff’ s claim or failed in any way to deny or contradict such portions of plaintiff’s evidence as were not admitted. Defendant simply failed to offer anything in the way of defense. The result is there was no issue of fact to submit to the jury and plaintiffs motion for a directed verdict was properly sustained. The judgment is affirmed. | [
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The opinion of tihe court was delivered by
Price, J.:
This is a habeas corpus proceeding.
The petitioner, Maynard Allen Hedge, will be referred to as plaintiff.
The respondent, Henry P. Campbell, sheriff of Leavenworth county, will be referred to as defendant.
Defendant has appealed from an order granting a writ of habeas corpus releasing plaintiff from custody.
The question presented concerns the construction of provisions of the Uniform Criminal Extradition Act (G. S. 1949, 62-727 to 62-757). More specifically, the question concerns the sufficiency of a “demand” by a demanding state to support a warrant by the governor of this state for the extradition to such demanding state of a fugitive found in this state.
There appears to be no dispute as to the facts.
On July 3, 1962, upon his plea of guilty to the charge of larceny of an automobile, a felony, in the superior court of Los Angeles county, California, plaintiff was sentenced to imprisonment—
“. . . for the term prescribed by law, which sentence is ordered to run concurrently with Federal sentence defendant may receive.”
While awaiting transfer to the California state prison plaintiff was released by the California authorities into the custody of federal authorities to stand trial upon a charge pending against him in federal court. He was convicted in federal court and was imprisoned in the United States penitentiary in Leavenworth county.
His sentence on the federal charge was to expire on September 10,1963, but the sentence of July 3,1962, imposed by the California state court, would not have expired on September 10,1963, the date of his scheduled release by the federal authorities.
In the meantime, on August 22, 1963, the governor of the state of California issued a requisition to the governor of this state in the form of a “demand” which requested that upon plaintiff’s release by the federal authorities he be delivered over to an agent of the state of California for return to that state. The requisition alleged that plaintiff had “fled from the justice” of California and had “taken refuge” in this state, and that he was a “fugitive from justice.” Accompanying the requisition were duly authenticated copies of the California state court proceedings showing the conviction of plaintiff in that state.
Pursuant to the requisition from the state of California, the governor of this state, on August 29, 1963, issued a warrant directing defendant sheriff to apprehend and deliver plaintiff fugitive into the custody of a named agent of the state of California. Pursuant thereto, upon plaintiff’s release by the federal authorities, defendant took plaintiff into custody for delivery to the California authorities.
Immediately thereafter plaintiff filed a petition for a writ of habeas corpus in the district court of Leavenworth county, alleging that the state of California no longer had jusisdiction of him and, having served the sentence imposed by the federal authorities, he was entitled to his release.
The matter was heard on September 10, 1963, at which time all parties were present and introduced evidence. On September 13, 1963, the court granted the writ, and in doing so made the following findings:
“1. The petitioner entered a plea of guilty in the Superior Court of the County of Los Angeles in the State of California to the charge of a violation of Section 10851 of the Vehicle Code of California, a felony.
“2. The petitioner was sentenced by the Superior Court of the County of Los Angeles in the State of California on July 3, 1962, upon his plea of guilty, to be punished by imprisonment in the state prison for the term prescribed by law, which sentence was ordered to run concurrently with any federal sentence which the petitioner might receive.
While awaiting transfer to the California State Prison, the petitioner was released by the California authorities into the custody of a United States Marshal.
“4. The petitioner was released from the United States Penitentiary at Leavenworth, Kansas, on September 10, 1963, into the custody of the Sheriff of Leavenworth County, Kansas, for extradition to the State of California.
“5. The respondent sheriff of Leavenworth County, Kansas, is holding the petitioner in custody by virtue of a warrant issued by the Governor of the State of Kansas which directs that the petitioner be delivered into the custody of a duly commissioned agent of the State of California.
“6. The sentence imposed upon the petitioner on July 3, 1962, by the Superior Court of the County of Los Angeles in the State of California has not expired.
“7. The authorities of the State of California voluntarily released the petitioner into the custody of the federal authorities. The petitioner has not escaped from confinement and he has not broken the terms of his bail, probation or parole.
“8. The executive authority of the demanding State of California has not submitted to the Governor of the State of Kansas a statement that the petitioner has escaped from confinement or has broken the terms of his bail, probation or parole.
“9. The warrant issued by the Governor of the State of Kansas which directs that the petitioner be delivered into the custody of a duly commissioned agent of the State of California is void for the reason that under the provisions of Section 62-729 of the General Statutes of Kansas no demand for the extradition of a person sentenced for a crime in another state shall be recognized by the Governor unless the person sought to be extradited has escaped from confinement or has broken the terms of his bail, probation or parole.
‘TO. The petitioner is being illegally restrained of his liberty by the respondent sheriff of Leavenworth County, Kansas.
“It Is, Therefore, Ordered and Adjudged that the petitioner be released from the custody of the respondent sheriff of Leavenworth County, Kansas.”
From this judgment the defendant sheriff has appealed.
Article IV, Sec. 2, of the constitution of the United States in material part, states:
“A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up to be removed to the State having Jurisdiction of the Crime.”
G. S. 1949, 62-728, being a section of our Uniform Criminal Extradition Act, reads:
“Subject to die provisions of this act, the provisions of the constitution of the United States controlling, and any and all acts of congress enacted in pursuance thereof, it is the duty of the governor of this state to have arrested and delivered up to the executive authority of any other state of the United States any person charged in that state with treason, felony, or other crime, who has fled from justice and is found in this state.”
The next section, G. S. 1949, 62-729, the construction of which is here involved, reads:
“No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing alleging, . . ., that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon; or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the executive authority making the demand.”
In findings Nos. 7 and 8, above, the court found that the California authorities voluntarily released plaintiff into the custody of the federal authorities; that he had not escaped from confinement and had not broken the terms of his bail, probation or parole, and that the governor of California had not submitted to the governor of this state a statement that plaintiff had escaped from confinement or had broken the terms of his bail, probation or parole.
Defendant sheriff does not dispute the correctness of those two findings.
In finding No. 9, above, which is in the nature of a conclusion, and the correctness of which is the decisive point in this case, the basis of the court’s decision appears to be that under the language of G. S. 1949, 62-729, when a person sought to be extradited has been convicted of and sentenced for a crime in the demanding state — as was the case here — the demand, in order to support the issuance of a warrant hy the governor of this state, must state that the person sought to be extradited has escaped from confinement or has broken the terms of his bail, probation or parole.
We believe such construction of the statute is too narrow and that, carried to its ultimate conclusion, would be in violation of tire above-quoted provision of the United States constitution and would completely thwart the very purpose of the extradition laws.
There can be no question but that with respect to the state of California — plaintiff is a fugitive from justice. In In re Martin, 142 Kan. 907, 52 P. 2d 1196, it was said that where one commits an offense in the demanding state and thereafter goes or is taken into another or asylum state, his motives in leaving or the reasons why he left the demanding state are immaterial, (p. 909.)
In Thompson v. Nye, 174 Kan. 750, 257 P. 2d 937, it was held:
“The term ‘fugitive from justice,’ as used in statutes pertaining to extradition, is not synonymous in meaning with the term ‘fleeing from justice,’ as used in the statute of limitations. Ordinarily, in statutes relating to extradition the term ‘fugitive from justice’ has reference to one who has committed an offense in one state or jurisdiction and is afterwards found in another.” (syl. 1.)
“A petitioner for habeas corpus seeking to defeat extradition has the burden of establishing he is not a fugitive from justice.” (syl. 3.)
In Tines v. Hudspeth, 164 Kan. 471, 190 P. 2d 867, it was said:
“The third claim made by petitioner and relied on by him as a ground for the issuance of a writ is likewise untenable. While it is true that under the provisions of article 4 of the constitution of the United States and laws enacted thereunder (18 U. S. C. A., §§662, 663) no person can be lawfully removed from one state to another by extradition unless he is charged with crime and is a fugitive from justice, petitioner’s contention that he was neither charged with crime nor a fugitive when extradited from Nebraska cannot be upheld. We are not disposed to labor the issue. Petitioner’s sentence under the judgment rendered by the district court had not expired on the date of his extradition. Under numerous decisions, within the meaning of such terms as used in the constitution and the criminal code, a person is ‘charged with crime’ where prosecution has been initiated, pursued to judgment of conviction and sentence has not expired [citing]. He is also a ‘fugitive from justice.’” [Citing] (p. 477.)
In Holden v. Hudspeth, 168 Kan. 194, 211 P. 2d 64, it was said:
“Appellant further contends that when he was released by the Kansas authorities to the federal authorities to be prosecuted for violation of the Dyer act the state of Kansas thereby lost its jurisdiction over him to return him to the institution as a parole violator. This point is not well taken.” (p. 196.)
To the same effect see Ohrazada v. Turner, 164 Kan. 581, syllabi 3 and 4, 190 P. 2d 413.
The statute, G. S. 1949, 62-729, is in the disjunctive, and provides for two alternative showings by the demanding state in order to secure extradition — that is, that the person is a fugitive from justice, or, having been convicted and sentenced, has escaped from confinement or has broken the terms of his bail, probation or parole. Plaintiff had committed a crime in the state of California. The fact authorities of that state turned him over to the federal authorities for prosecution did not deprive California of jurisdiction over him when he completed the federal sentence. The fact he came into this state involuntarily makes no difference. While he did not “flee” from California in the literal sense of the word, nevertheless, not having completed the sentence imposed by the state court of California, he, at the time of his release in this state by the federal authorities, was, as to the state of California, a fugitive from justice and therefore was subject to being returned to that state. The demand by the governor of California complied with the provisions of the mentioned statute and was sufficient to support the issuance of the warrant by the governor of this state. Pursuant to the command of that warrant, plaintiff was in lawful custody of defendant sheriff and the writ of habeas corpus was erroneously granted. The judgment is therefore reversed with directions to deny the petition for a writ.
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The opinion of the court was delivered by
Schroeder, J.:
This is a negligence action by the plaintiff against multiple defendants to recover damages arising out of an automobile collision. The plaintiff seeks to recover damages for personal injuries to herself and for the loss of consortium, society and companionship which she alleges were sustained by her because of direct injuries to her husband in the same collision. The plaintiff alleges these injuries were caused by the negligence of the defendants.
The question presented by this appeal is whether a wife can recover damages for loss of consortium resulting from a direct injury to her husband because of the negligent acts of others.
The appeal in this case grows out of the same set of facts reported in Hoffman v. Dautel, 190 Kan. 131, 373 P. 2d 191. There the court held an order overruling a motion to strike paragraph XVIII from the petition was not appealable.
Upon remand of the case to the lower court, paragraph XVIII was attacked by a demurrer on the ground it failed to allege facts sufficient to state a cause of action against the defendants for loss of consortium due to the injuries to plaintiff’s husband. The demurrer was sustained and the plaintiff has duly perfected an appeal.
The appellant’s husband was the driver of the automobile in which she was riding, and she brings this action for her personal injuries as a result of the accident. She joins in her cause of action for personal injuries her right to recover for the negligent impairment of her consortium with her husband. In the same petition she alleges what is denominated a second cause of action pursuant to G. S. 1949, 23-205, not a subject of this appeal. The second cause of action is brought in her name for the benefit of her husband based on the loss or impairment of her ability to perform domestic services.
Three minor children of the appellant were riding in the automobile with them when the collision occurred on June 9,1958. The children, through their mother and next friend, brought an action to recover damages for the negligent injuries to their father. On appeal to this court (Hoffman v. Dautel, 189 Kan. 165, 368 P. 2d 57) it was held the district court did not err in sustaining the defendants’ motion to strike allegations of indirect injury and damage to the children, based upon a direct injury to the father. The court held:
“A minor child has no cause of action for damages arising out of the disability of its father, caused by negligence of the defendant, with attendant loss of acts of parental guidance, love, society, companionship and other incidences of the parent-child relationship.” (Syl. f 1.)
Paragraph XVIII, here under attack, in the amended petition of the appellant reads:
“That by reason of the concurrent negligence and concurrent carelessness of the defendants, as set out above, the plaintiff’s husband, Everett Eugene Hoffman, who was the driver of the automobile, as hereinbefore alleged, was seriously and permanently injured and that as a result of the injuries to plaintiff’s husband, she has been and shall be deprived for the remainder of her life of the services, comfort, society, companionship and consortium of a kind, faithful, and loving husband, damaging plaintiff in the sum of $50,000.00.”
G. S. 1949, 23-205 provides:
“That where, through the wrong of another, a married woman shall sustain personal injuries causing the loss or impairment of her ability to perform services, the right of action to recover damages for such loss or impairment shall vest solely in her, and any recovery therefor, so far as it is based upon the loss or impairment of her ability to perform services in the household and in the discharge of her domestic duties, shall be for the benefit of her husband so far as he shall be entitled thereto: Provided, however, That nothing herein shall in any way affect the right of the husband to recover damages for the wrongful death of his wife.”
The foregoing statute is specifically limited by its provisions. It requires that a wife bring the cause of action in her name for the benefit of her husband based on the loss or impairment of her ability to perform domestic services. In Clark v. Southwestern Greyhound Lines, 144 Kan. 344, 58 P. 2d 1128, the husband was denied the right to sue in his own name for the loss of his wife’s services and companionship. The court held no distinction can be drawn between “services” and “companionship” because the terms “services” and “domestic duties” include companionship, and the wife is by statute the sole person who may bring such an action for the benefit of her husband.
It has been held proper for a married woman to frame her petition in two causes of action, when she brings an action for damages for her personal injuries caused by the negligence of a third party, and also to recover damage resulting to her husband from the same negligence, as authorized by 23-205, supra. (White v. Toombs, 162 Kan. 585, 178 P. 2d 206.)
The appellant argues that if by statute a wife must alone bring such a cause of action, she may certainly bring a cause of action when her husband has been negligently injured, and she alleges damages resulting from injury and loss to her by reason of her husband’s injuries and uselessness.
The appellant relies upon the dictum in the Clark case, supra, at page 347, to the effect that the husband owes the wife the same duties as does the wife owe the husband.
With the exception of a North Carolina decision (Hipp v. Dupont [1921], 182 N. C. 9, 108 S. E. 318, 18 A. L. R. 873), subsequently overruled (Hinnant v. Power Co. [1924], 187 N. C. 288, 121 S. E. 307, 37 A. L. R. 889), the right of the wife to recover for loss of consortium caused by negligent injury to her husband was not recognized until 1950, when the case of Hitaffer v. Argonne Co. [D. C. Cir. 1950] 183 F. 2d 811, cert. den. 340 U. S. 852, 95 L. Ed. 624, 71 S. Ct. 80, 23 A. L. R. 2d 1366, held she was entitled to relief. (Hitaffer was subsequently overruled on other points — Smither and Company, Inc. v. Coles [D. C. Cir. 1957], 242 F. 2d 220.) Decisions following the lead in the Hitaffer case are: Hoekstra v. Helgeland [1959], 78 S. D. 82, 98 N. W. 2d 669; Brown v. Ga.-Tenn. Coaches, Inc. [1953], 88 Ga. App. 519, 77 S. E. 2d 24; Dini v. Naiditch [1960], 20 Ill. 2d 406, 170 N. E. 2d 881; Montgomery v. Stephan [1960], 359 Mich. 33, 101 N. W. 2d 227; Yonner v. Adams [Del. 1961], 167 A. 2d 717; Mo. Pac. Trans. Co. v. Miller [1957], 227 Ark. 351, 299 S. W. 2d 41; Novak v. Kansas City Transit, Inc. [Mo. 1963], 365 S. W. 2d 539; Ellis v. Fallert et al. [1957], 209 Or. 406, 307 P. 2d 283; Cooney v. Moomaw [D. Neb. 1953], 109 F. Supp. 448; and Duffy v. Lipsman-Fulkerson & Co. [D. Mont. 1961], 200 F. Supp. 71.
Most courts, however, which have considered the question since 1950 have followed the majority rule and have refused to permit the wife to maintain an action of this type. Within the past few years the following courts have considered the question and denied recovery: State Farm Mut. Auto. Ins. Co. v. Village of Isle [1963], 265 Minn. 360, 122 N. W. 2d 36; Baird v. Cincinnati, New Orleans & Texas Pacific R. Co. [Ky. 1963], 368 S. W. 2d 172; Miller v. Sparks [Ind. 1963], 189 N. E. 2d 720; Wilson v. Redding [Fla. 1962], 145 So. 2d 252; Seagraves v. Legg [W. Va. 1962], 127 S. E. 2d 605; Page v. Winter [1962], 240 S. C. 516, 126 S. E. 2d 570; and Deshotel v. Atchison, T. & S. F. Ry Co. [1958], 50 C 2d 664, 328 P. 2d 449.
The decisions on the subject prior to 1952 are accumulated in 23 A. L. R. 2d 1378 under an annotation entitled “Wife’s right of action for loss of consortium.” Other American decisions on the question since 1952 denying the wife’s recovery are: Franzen v. Zimmerman [1953], 127 Colo. 381, 256 P. 2d 897; Ripley v. Ewell [Fla. 1952], 61 So. 2d 420; Coastal Tank Lines, Inc. v. Canoles [1955], 207 Md. 37, 113 A. 2d 82; Hartman v. Cold Spring Granite Co. [1956], 247 Minn. 515, 77 N. W. 2d 651; Larocca v. American Chain & Cable Co., Inc. [App. Div. 1952], 23 N. J. Super. 195, 92 A. 2d 811; Don v. Benjamin M. Knapp, Inc. [1953], 281 App. Div. 892, 119 N. Y. S. 2d. 801, aff’d. 306 N. Y. 675, 117 N. E. 2d 128; Garrett v. Reno Oil Company [Tex. Civ. App. 1954], 271 S. W. 2d 764; Nickel v. Hardware Mut. Casualty Co. [1955], 269 Wis. 647, 70 N. W. 2d 205; Ash v. S. S. Mullen, Inc. [1953], 43 Wash. 2d 345, 261 P. 2d 118; Fragnoli v. Israel [1959], 20 Misc. 2d 436, 190 N. Y. S. 2d 1; La Eace v. Cincinnati, Newport & Covington Ry. Co., Inc. [Ky. 1952], 249 S. W. 2d 534; and Kronenbitter v. Washburn Wire Co. [1958], 4 N. Y. 2d 524, 176 N. Y. S. 2d 354, 151 N. E. 2d 898.
Federal Circuit Court decisions following various state laws have denied the wife recovery in: Seymour v. Union News Company [7th Cir. 1954], 217 F. 2d 168; Filice v. United States [9th Cir. 1954], 217 F. 2d 515; and O’Neil v. United States [D. C. Cir. 1953], 202 F. 2d 366.
No doubt the many cases in which a wife’s claim has been rejected provides the basis for the rule as it is stated in Restatement, Torts, § 695, p. 496:
“A married woman is not entitled to recover from one who, by his tortious conduct against her husband has become liable to him for illness or other bodily harm, for harm thereby caused to any of her marital interests or for any expense incurred in providing medical treatment for her husband.”
Some of the cases on the subject are a treatise in themselves: Hitaffer v. Argonne Co., supra; Hoekstra v. Helgeland, supra; Brown v. Ga.-Tenn. Coaches, Inc., supra; Dini v. Naiditch, supra; Deshotel v. Atchison, T. & S. F. Ry. Co., supra; and Neuberg, Appellant v. Bobowicz [1960], 401 Pa. 146, 162 A. 2d 662.
A case note is found on the subject in 9 Kan. L. Rev. 333.
Inasmuch as the question presented is essentially one of first impression for this court, we shall review the origin of the common law rule, examine its application by the courts of other jurisdictions and the reasons advanced for its retention or rejection.
A determination of what is meant by “consortium” is itself a problem, as evidenced by the fact that, as late as 1951, in the English case of Best v. Samuel Fox & Co. Ld. [1951], 2 K. B. 639, 657, Lord Justice Birkett, after reviewing the decision of the United States Court of Appeals in Hitaffer v. Argonne Co., supra, was compelled to state: “The term ‘consortium’ is nowhere defined with complete precision.”
The Pennsylvania court speaking of definition in Neuberg, Appellant v. Bobowicz, supra, said:
“We hesitate the longer to reincarnate the right to sue for loss of consortium in the form for which contention is made here when we see this confusion raised, seemingly, to the third power by the following even more involved, complexities. . . .” (p. 153.)
It has been said the legal term for marital companionship is consortium. It is defined in Black’s Law Dictionary as conjugal fellowship of husband and wife, and the right of each to the company, cooperation, affection and aid of the other in every conjugal relationship.
Consortium has been defined as a right growing out of the marital relationship which includes the right of either spouse to the society, companionship, conjugal affection and assistance of the other. (Hoekstra v. Helgeland, supra — the court saying a loss or impairment of any such elements would sustain an action for alienation of affections.) Hitaffer defined consortium as embracing within its ambit, in addition to marital services, love, affection, companionship, sexual relations, etc., all welded into a conceptualistic unity. Generally it may be said the term “consortium” includes services, and the elements other than services are sometimes referred to as the sentimental elements of marriage or of the term “consortium.” Some courts speak of the noneconomic aspects usually included within the term “consortium.” An accumulation of the authorities discussing the definitions of “consortium” may be found at page 88 in the Hoekstra case. It is apparent in some of the cases the difference in definition or changes in meaning may account for the divergence in the opinions of the courts.
Unless otherwise indicated we shall use the term “consortium” in its all-inclusive sense. This appears to be consistent with the use of the term in Gooch v. Gooch, 112 Kan. 592, 211 Pac. 621, where the court was confronted with an action for alienation of affections; and also consistent with Clark v. Southwestern Greyhound Lines, 144 Kan. 344, 58 P. 2d 1128, which held no distinction could be drawn between “services” and “companionship” in an action by the husband for loss of services and companionship by reason of injuries to the wife.
The underlying philosophy which denies to the wife a right to recover for loss of consortium negligently caused to her husband by another is historical in origin. It is, therefore, necessary to examine the common law and attempt to determine the reason for the rule that allowed a recovery by the husband for loss of the wife’s consortium and denied the wife a recovery for the loss of the husband’s consortium. Strangely enough, the writers on this subject do not seem to be in agreement.
Some take the view that at common law the wife had the lawful right to the consortium of the husband, that an injury to the husband which impaired the capacities of the husband was a violation of the wife’s rights, but that because her identity was merged into that of the husband she could not maintain any action for the recovery of the damages to which she was otherwise entitled. They conclude that the only impediment to the maintenance of the action at common law was the wife’s inability to sue. It is questionable whether there is adequate support for this view in the common law.
Others take the view that consortium was at common law considered an incident or component part of the husband’s common law right to the services of the wife and inseparable therefrom. Under this view the wife had no cause of action as distinguished from a lack of remedy due to her incapacity to sue. (Deshotel v. Atchison, T. & S. F. Ry. Co., supra; and Ripley v. Ewell, supra.)
A better perspective of the common law rule can be obtained by recognizing that marriage was only one of several relationships in which one person was regarded as having a special property interest in the services, if not the person, of another. A father had a legal property interest in the services of his child. He still does. A master had a form of legal property interest in the services of his servant. This relationship in its common law form has largely disappeared at the present time. At common law the father or master could recover, in appropriate cases, for injuries to the child or servant resulting in a loss of these services. Frequently recovery was allowed far in excess of the monetary damages.
Blackstone, generally considered the most reliable authority on the common law, explains the reason for the rule as applied to these relationships as follows:
“We may observe that, in these relative injuries, notice is only taken of the wrong done to the superior of the parties related, by the breach and dissolution of either the relation itself, or at least the advantages accruing therefrom; while the loss of the inferior by such injuries is totally unregarded. One reason for which may be this: that the inferior has no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior; and therefore the inferior can suffer no loss or injury. . . .” (3 Blackstone Commentaries [5th ed.] pp. 142, 143.)
From the present viewpoint we would not hesitate to say that, insofar as measurable pecuniary damages are concerned, a greater loss is sustained by a child whose father is completely incapacitated, than is sustained by a father whose child is seriously injured. The child loses far more than the financial assistance which the father might otherwise provide. The companionship, society, love, counsel and all the elements that go to make up the consortium of the marriage relationship except sex relations may be lost to the child. But the common law did not, nor does modem law, give the child, so long as the father survives, any cause of action against the stranger who negligently injures the father. (See, Hoffman v. Dautel, 189 Kan. 165, 368 P. 2d 57.)
The underlying process of thinking that evolved the common law rule seems to be that the law would allow a recovery by one person having a special property interest in the services of another when such other was injured by the wrongful act of a stranger.
Under the common law the husband had many rights with respect to the property, services and person of the wife which would be considered barbaric today. Many, in fact most, of these have been eliminated by the constitution and various statutes, but it is significant that we must look to the constitution and statutes for these changes. The courts have liberally construed statutes relieving the disabilities of coverture (See, G. S. 1949, 77-109), but have consistently recognized that when the common law was adopted as the law of this state it was done with full knowledge that the common law included the disabilities of coverture as they then existed.
From the beginning of our history as a state (Territorial Laws 1855, ch. 96, Laws 1862, ch. 135, G. S. 1935, 77-109) the common law of England has been the basis of the law of this state, and except as modified by constitutional or statutory provisions, by judicial decisions, or by the wants and needs of the people, it has continued to remain the law of this state. (G. S. 1949, 77-109; Gonzales, Administrator v. Atchison, T. & S. F. Rly. Co., 189 Kan. 689, 371 P. 2d 193; State, ex rel., v. Board of Agriculture, 158 Kan. 603, 605, 149 P. 2d 604; Fergus v. Tomlinson, 126 Kan. 427, 268 Pac. 849; and In re Frye, 173 Kan. 392, 396, 246 P. 2d 313.)
The same thing that has been said concerning the disability of married women may be said of the common law relative to torts. For example, the common law recognized no cause of action for wrongful death. This and other provisions of the common law found to be inconsistent with our present day conceptions of justice have been done away with or modified largely by statute.
Our court is committed to the proposition that the common law is not static, but is endowed with vitality and a capacity to grow. It never becomes permanently crystalized but changes and adjusts from time to time to new developments in social and economic life to meet the changing needs of a complex society. (Hoffman v. Dautel, 189 Kan. 165, 368 P. 2d 57.) The appellant strenuously urges the court to apply this rule to the situation presented for a reversal of the trial court.
In Williams v. City of Wichita, 190 Kan. 317, 374 P. 2d 578, this court said:
“. . . From the earliest days of Kansas history, flexibility in the common law has been carefully preserved (G. S. 1949, 77-109). Indeed, the great office of statutes is to remedy defects in the common law as they are developed and to adapt it to the changes of time and circumstances. That the legislature may change the principle of the common law and abrogate decisions made thereunder when in its opinion it is necessary to the public interest is well settled. . . p. 331.)
It is no more than an historical accident that the husband’s common law action for loss of constortium survived the enactment of the married woman’s act of 1868 (now G. S. 1949, 23-201-204 and 206-207.) The statute drastically changed the legal status of married women, and it is not surprising that it was narrowly construed in the early cases that considered the scope of recovery to be allowed to an injured married woman. The husband’s action has survived in theory by acquiescence and not because it has withstood critical analysis.
For example, in City of Wyandotte v. Agan, 37 Kan. 528, 15 Pac. 529, a married woman was injured by the alleged negligence of the city in the maintenance of a defective board sidewalk. She was engaged in a business of her own and brought an action to recover damages for disabilities which prevented her from carrying on her separate business. The court held than an action for such damages accrued to her alone, the court distinguishing between services performed on behalf of her separate business and those owed to her husband. The court said:
“. . . The profits or earnings of such business or labor are her sole and separate property, and cannot be appropriated or controlled by her husband without her consent. So far, then, as she is deprived of these she suffers a loss which is personal to herself, for which she alone can recover. The fact that she is partially or wholly dependent upon the husband for support does not abridge her right of action, nor transfer to him that which accrued solely to her. Notwithstanding this, we are compelled to hold that the instruction was prejudicially erroneous. The duty devolves upon the husband to take care of and provide for the wife, and he is entitled to her society and to her services other than those performed on her sole and separate account. If he is deprived of these services in consequence of an injury inflicted, the loss is his, and the right of action therefor exists in him. . . .” p. 530.)
Under this interpretation of the Kansas act, a negligent injury to the wife gave rise to two causes of action, one in the wife for personal injuries and another in the husband for the loss of her society and services. In Shattuck v. Pickwick Stages Corp., 135 Kan. 602, 11 P. 2d 996, the husband was permitted to recover for his nursing services to his injured wife.
However, in 1921 the legislature enacted an addition to the married womens act (G. S. 1949, 23-205) to avoid multiplicity of suits by giving the wife the sole right to sue for her personal injuries and for the loss of her services to the husband, the latter being for the benefit of her husband. (Taylor v. S. H. Kress & Co., 136 Kan. 155, 12 P. 2d 808; Clark v. Southwestern Greyhound Lines, supra; and White v. Toombs, supra.)
Generally, in American jurisprudence under married women’s acts enabling a married woman to sue in her own name, a wife has a right of action for loss of consortium in certain cases, even in the absence of any statute expressly conferring such right. A wife may maintain a suit for any interference by an outsider with any marital duty that the husband owes her, where such interference is intentionally or maliciously inflicted, since in such case there is a direct attack upon the marital relationship. It is clearly a violation of a right which she has against the world. The cases in which her right of action is commonly sustained are those for alienation of affections of her husband and for criminal conversations, and closely akin thereto is her cause of action, sometimes recognized, for willful acts directed against her husband and causing her loss of consortium. (27 Am. Jur., Husband and Wife, § 513; p. 113; and see, Gooch v. Gooch, supra.)
As a result of the married women’s acts, a large majority of the states today extend to both spouses the right to recover for loss of consortium caused by an intentional wrong. (Prosser on Torts, 2nd Ed. [1955], pp. 690-692.)
Various reasons have been assigned by courts which deny the wife a right to recover for the loss or impairment of her husband’s consortium due to the negligent act of another. Generally, these courts hold that at common law a married woman had no right to sue for loss of consortium (Ripley v. Ewell [Fla. 1952], 61 So. 2d 420; Ash v. S. S. Mullen, Inc. [1953], 43 Wash. 2d 345, 261 P. 2d 118; Deshotel v. Atchison, T. & S. F. Ry. Co. [1958], 50 C. 2d 664, 328 P. 2d 449; Franzen v. Zimmerman [1953], 127 Colo. 381, 256 P. 2d 897; Jeune v. Del E. Webb Const. Co. [1954], 77 Ariz. 226, 269 P. 2d 723; Snodgrass v. Cherry-Burrell Co. [1960], 103 N. H. 56, 164 A. 2d 579; Smith v. Nicholas Bldg. Co. [1915], 93 Ohio St. 101, 112 N. E. 204; Smith v. United Construction Workers, District 50 [1960], 271 Ala. 42, 122 So. 2d 153; Page v. Winter [1962], 240 S. C. 516, 126 S. 2d 570; and Seagraves v. Legg [W. Va. 1962], 127 S. E. 2d 605); and no right to do so was conferred upon her by passage of the married women’s acts. (Howard v. Verdigris Valley Electric Co-Operative, Inc. [1949], 201 Okla. 504, 207 P. 2d 784; Nickel v. Harware Mut. Casualty Co. [1955], 269 Wis. 647, 70 N. W. 2d 205; Ash v. S. S. Mullen, Inc., supra; Franzen v. Zimmerman, supra; Seagraves v. Legg, supra; Coastal Tank Lines, Inc. v. Canoles [1955], 207 Md. 37, 113 A. 2d 82; Larocca v. American Chain & Cable Co. Inc. [App. Div. 1952], 23 N. J. Super. 195, 92 A. 2d 811; State Farm Mut. Auto. Ins. Co. v. Village of Isle [1963], 265 Minn. 360, 122 N. W. 2d 36; Baird v. Cincinnati, New Orleans & Texas Pacific R. Co. [Ky. 1963] 368 S. W. 2d 172; Cravens v. L. & N. R. Co. [1922], 195 Ky. 257, 242 S. W. 628; Smith v. Nicholas Bldg. Co., supra; and Snodgrass v. Cherry-Burrell Co., supra.)
Many courts say that one of the main obstacles in allowing the wife recovery is the absence of any sound basis upon which to compute the value of consortium with any degree of certainty. A correlative argument against a wife’s recovery is that to allow her to recover when she may be indirectly compensated by a judgment in favor of her injured husband might constitute double recovery for the same injury. (Deshotel v. Atchison, T. & S. F. Ry. Co., supra; Nickel v. Hardware Mut. Casualty Co., supra; Larocca v. American Chain & Cable Co., Inc., supra; Coastal Tank Lines, Inc. v. Canoles, supra; and Kronenbitter v. Washburn Wire Co. [1958], 4 N. Y. 2d 524, 176 N. Y. S. 2d 354, 151 N. E. 2d 898.)
Other courts say the loss or damage to the wife for loss or impairment of her husband’s consortium is too remote and indirect to be capable of measurement. (Brown v. Kistleman [1912], 177 Ind. 692, 98 N. E. 631; Coastal Tank Lines, Inc. v. Canoles, supra; Larocca v. American Chain & Cable Co., Inc., supra; Deshotel v. Atchison, T. & S. F. Ry. Co., supra; and Hinnant v. Power Co. [1925], 189 N. C. 120, 126 S. E. 307.)
In Hitaffer the court said none of the cases denying the wife a cause of action for loss of consortium commends itself on the basis of its logic. We quote from the opinion:
“As to those authorities which hold that the injury to the wife is not compensable because it is indirect, we simply state that if that be so then it would likewise be true in the husband’s suit. But such is not the rule here. Invasion of the consortium is an independent wrong directly to the spouse so injured. The mere fact that the loss of one or the other of the elements thereof may have been indirectly redressed in anothers’ suit, does not make the injury to the remaining elements any less direct.
“The argument that the injuries of which a wife complains are too remote and consequential fails for two reasons. In the first place, we are committed to the rule in negligence cases that where in the natural and continual sequence, unbroken by any intervening cause, an injury is produced which, but for the negligent act would not have occurred, the wrongdoer will be liable. And it makes no difference whether or not that particular result was foreseeable. Secondly, if such a rule were valid there could be no basis for distinguishing between an action by a husband and one by the wife. In both cases the damages for the sentimental .elements would be too remote and consequential; and yet we do not apply such a rule in the husband’s action. And, furthermore, there could be no reason for the allowance of an action for criminal conversation or alienation of affections in cases where the husband condoned the wife’s conduct, for obviously there would be no disruption of services; yet under such circumstances, it has been held that the husband may sue the seducer. The same would also be true in cases where it has been held that a husband has a cause of action for criminal conversation though living apart from his wife. Here too there could be no showing of a loss of services. In both cases the only injury to the spouse’s consortium lies in the sentimental area.
“Within the rationale of the cases just cited, allowing a husband recovery in cases where he can show no loss of services, lies the destruction of the authorities which hold that the common law recognized no cause of action for the loss of the so-called sentimental elements of the consortium alone, and the cases which further refine the rule by holding that an action for the loss of the sentimental elements cannot be allowed unless there is a showing of a loss of some material services. There is no judicial precedent for these rules, and the allowance of the action where no loss of material service is shown effectively destroys them.” (p. 815.)
The court also said:
“Another group of cases which similarly appear to place principal emphasis on the element of services in these actions hold that in negligent invasions of the consoHium the wife has no cause of action because the husband, who is under a legal duty to support his wife according to his station in life, recovers in his action for the tort, as an element of his damages, for any impairment of his ability to perform his obligation, and thus the wife indirectly recovers for the value of any loss of her consortium. Any other conclusion, they reason, would result in a double recovery. The husband, on the other hand, is allowed the action when the wife is injured, because she is under no corresponding duty to him. Of course, as we have already pointed out, there is no foundation for the statement that the predominant factor involved in negligence cases of this type is the element of material services. For that reason we eannot accept their argument. There is more to consortium than the mere services of the spouse. Beyond that there are the so-called sentimental elements to which the wife has a right for which there should be a remedy. We do agree, however, that if the wife is allowed to sue, there could be a double recovery in regard to the service element of consortium, if the husband’s recovery is not taken into account in measuring the wife’s damages and we shall deal with the problem hereinafter in more detail.” (p. 814.)
In Hitaffer the court began with the proposition that the common law gave to the husband a cause of action for the loss of consortium for injury negligently inflicted by another upon his wife. It then said the underlying ground of the common law rule of discrimination between husband and wife in respect of this right, was the incapacity of the wife to maintain a separate action for a tort, and that modern legislation had swept away and generally relieved the wife of the ordinary disabilities of coverture. Upon such assurance the court proceeded to hold that a husband and wife have, in the marriage relation, equal rights which will receive equal protection of the law. It then expanded the common law by recognizing a right in the wife to maintain an action for loss of consortium due to a negligent injury to her husband, saying:
“It is therefore the opinion of this court that in light of the existing law of this jurisdiction, in light of the specious and fallacious reasoning of those cases from other jurisdictions which have decided the question, and in light of the demonstratable desirability of the rule under the circumstances, a wife has a cause of action for loss of consortium, due to a negligent injury to her husband.” (p. 819.)
While the opinion in Hitaffer has exposed some of the fallacious reasoning in many cases and exploded fiction, it has not persuaded us the issue is free from doubt.
Brushing all legal jargon aside, the court is fundamentally confronted with a basic policy consideration. We recognize when the reason for a common law rule no longer exists, the rule should be changed. It is clear that the granting of relief to the wife for loss of consortium caused by negligent injury to her husband would constitute an extension of common law liability, and the courts are justifiably reluctant to depart from established limitations on recovery.
Our consideration of the question is premised upon certain basic facts. At common law the wife had no cause of action for loss or impairment of consortium caused by negligent injury to her husband. Under G. S. 1949, 23-203, a woman may, while married, sue and be sued, but the enactment of this statute did not give to the wife a cause of action which she did not have at common law.
Weighted in the scale is the historical origin of the husband’s action for loss or impairment of the wife’s consortium due to the negligent act of another. The Court of Appeals of New York in Kronenbitter v. Washburn Wire Co., supra, said:
“To decide otherwise would be contrary to principle. . . . The argument that equality of the sexes calls for a change overlooks that the husband’s right to damages for loss of consortium is based on outworn theory. . . .” (p. 527.)
Then, quoting from 18 Law and Contemporary Problems, pp. 219, 229, the court, adopting the language of Professor Jaffe, continued:
“ ‘More persuasive is the argument that since the husband has an action, so should the wife. But his action is a fossil from an earlier era. It is one of a group of archaic actions based on the notice that the paterfamilias was alone competent to sue for losses suffered by the family unit. . . . When to the husband’s action, there is now added the wife’s action for negligent injuries (which being emancipated she is entitled to bring) there is a danger of duplicating elements of damage. Ingenious efforts must be made to disentangle from the wife’s recovery the constituents of the husband’s cause of action. Indeed, the emancipation argues for the restriction or abolition of these actions rather than their extension. Some courts have been bold enough entirely to abolish the husband’s action. . . .’” (p. 527.) (Emphasis added.)
When two overlapping causes of action are made to grow where one has grown before, the possibility of double recovery is real.
The Missouri court, in discussing the prospect of double recovery in Bernhardt v. Perry [1919], 276 Mo. 612, 208 S. W. 462, 13 A. L. R. 1320 [error dismissed 254 U. S. 662, 65 L. Ed. 464, 41 S. Ct. 63], said:
“. . . In the first place, her husband would recover full compensation for all injuries he sustained, . . . and in addition he would recover for all injuries to his vital organs’ and for being incapacitated to care for, associate with and protect her, as well as being deprived of his right to consort with her. This would make him whole, as much so as it would be possible to do, within the contemplation of the law; with those damage collected he would be just as able to perform all of his marital duties and obligations to her as if he had never been injured; and the law presumes he would discharge those obligations to the best of his ability, which would fully compensate her for all damages she had received; but if he should not do so, then she would have her legal remedy against her husband and not against the person who injured him. But notwithstanding this full compensation he is supposed to have recovered and which he must expend upon her for her proper care, support, maintenance, etc., yet, if she is authorized ... to recover from the defendant in this action, then she would recover from the same wrongdoer the damages she had sustained for the same injuries her husband had recovered for, and out of which, as before stated, he is legally bound to support, maintain and care for her. This would be double compensation, which in my opinion the Legislature never intended.” (pp. 629, 630.)
The court in Goldman v. Cohen [1900] 30 Misc. 336, 63 N. Y. S. 459, noted there was no precedent for an action by the wife and held the compensation awarded because of negligence was remedial, not punitive, and tended to neutralize indirect losses to others by compensation to the husband and father, thus avoiding double or triple recoveries for the same elements of compensatory damages. The court stated the wife’s interest in the husband’s life and companionship was not a right of property, but lay in a region into which the law does not enter except when necessity compels, and distinguished the situation where such an interest is invaded by willful misconduct, pointing out that the law in such a case inflicts heavy damages upon the enticer or seducer, but noting that this was punishment and atonement rather than compensation.
The New Hampshire court in Snodgrass v. Cherry-Burrell Co., supra, in denying the wife the right to bring this sort of an action, held any recompense to the wife, whether the services lost to the home are her own, her husband’s or her child’s, must be derived indirectly out of the recovery by the husband and through his performance of his obligation to support the wife.
Adjectives, adverbs and epithets can neither solve nor eliminate the problem. If both the husband and the wife were permitted to bring independent actions for the recovery of damages inflicted by the negligent injury of another, there is no assurance which action would be tried first, or even that the two actions would be filed in the same court. Furthermore, by looking to the history of the husband’s cause of action for his loss of consortium with the wife, it must be observed that each man’s life is linked to the lives of many others, and an injury to one inevitably has its impact upon the lives of others. So far it has never been suggested that everyone who is adversely affected by an injury inflicted upon another should be allowed to recover his damages. If the common law of this state is extended to give the wife a cause of action, would not the court then be called upon to extend a cause of action to the children who likewise suffer a loss by reason of negligent injury to their father, or a partner in business who is materially damaged by his injury? Further questions are posed with respect to the settlement of actions where a spouse is injured. A settlement with the husband for his injuries may still subject the wrongdoer to an action on the part of the wife. In Kansas the entire damage in cases of negligent injury to a husband or father has always been considered as centering in him, and a settlement with him has always been recognized as closing the incident.
An action on behalf of the children was given careful attention by this court in Hoffman v. Dautel, 189 Kan. 165, 368 P. 2d 57, where the following observations were made:
“While courts should be ever alert to widen the circle of justice, at the same time they should proceed with caution in laying down a new rule in the light of conditions affected or to be affected by it. If this court were to conclude that a cause of action is here alleged, the far-reaching results of such a decision would be readily apparent. A new field of litigation would thus arise between minor children and third party tort-feasors who injure either parent when it is alleged that the negligent injury contributed to the impairment or destruction of the happy family unit with resulting loss and damage to the minor children. The possibility of multiplicity of actions based upon a single tort and one physical injury, when there is added the double-recovery aspect of such a situation in the absence of some statutory control, is deemed sufficient to prevent this court from answering in the affirmative that a cause of action has been alleged. The district court did not err in sustaining the motion to strike paragraphs 7, 8 and 9 from the petition.” (p. 169.)
Judge Arthur J. Stanley, Jr. in the Federal District Court of Kansas adopted the reasoning of the foregoing decision, holding under Kansas law that a wife has no cause of action for loss of consortium because of injuries to her husband in Criqui v. Blaw-Knox Company [D. C. Kan. 1962] 208 F. Supp. 605. The Court there said:
“The Supreme Court of Kansas has said that G. S. 23-205 was enacted to avoid a multiplicity of suits. White v. Toombs, 162 Kan. 585, 178 P. 2d 206 (1947). The legislature having established a policy against such multiplicity where the wife is injured, it would seem that the same rule should govern where the husband is injured. In the recent case of Hoffman v. Dautel, 189 Kan. 165, 368 P. 2d 57 (1962), it was held that minor children have no cause of action for damages arising out of nonfatal injury to their father, the court saying that to hold otherwise would result in multiplicity of actions, with the added possibility of double recovery.” (p. 608.)
Upon due consideration we refuse to extend the common law by giving the wife a cause of action for loss or impairment of consortium caused by negligent injury to her husband, and hold that the trial court properly sustained a demurrer to paragraph XVIII of the petition.
In our view the legislature rather than the courts can best deal with the problems presented. For example, the legislature, if it found this type of suit to be desirable, could define the extent of the liability, designate who may maintain the action as it did in the situation where the wife is negligently injured (G. S. 1949, 23-205), and provide safeguards against the danger of double recovery, such as a requirement that there be a joinder of the person directly injured and the one consequentially harmed. The legislature could also specify whether the proceeds should belong to the plaintiff alone or to both spouses. Clarification by statute as to both the husband and the wife would, of course, be preferable to piecemeal determination of the problems by judicial decision.
The judgment of the lower court is affirmed.
Wertz and Robb, JJ., dissent. | [
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The opinion of the court was delivered by
Wertz, J.;
This is a companion case to City of Hesston v. Smrha, 184 Kan. 223, 336 P. 2d 428. The same order of the trial court is here appealed from as in the City of Hesston case, and the issues are identical. The appeal is from the judgment of the trial court holding the Water Appropriation Act of 1945 (G. S. 1949, 82a-701, et seq., as amended) to be unconstitutional, being in violation of the constitution of the State of Kansas and the Fourteenth Amendment of the federal constitution.
In City of Hesston v. Smrha, supra, there was a hearing before the chief engineer of the division of water resources of the state board of agriculture on the allocation of water rights. The chief engineer made the order and the plaintiffs appealed from that order to the district court. No pleadings whatsoever were filed in the district court, and the trial judge held two pretrial conferences at the conclusion of which he found the Water Appropriation Act above referred to to be unconstitutional, and the city appealed.
In tbe instant case plaintiffs filed a notice of appeal to the district court from a determination by the chief engineer of tbe division of water resources of the state board of agriculture. No pleadings of any kind were filed in this case in the district court. Absent any pleadings, the trial court held two pretrial conferences at the conclusion of which it found the Water Appropriation Act of 1945 to be unconstitutional and entered judgment accordingly.
In City of Hesston v. Smrha, supra, we said:
“Where the record shows that no petition or other pleadings were filed so that no issues were raised in the trial court it is held, that court had no authority to order a pretrial conference (G. S. 1949, 60-2705), or to consider and determine questions of law (G. S. 1949, 60-2902), and it definitely had no authority to consider or determine the constitutionality of a statute.” (Syl. ¶1.)
No useful purpose would be gained in extending this opinion. Suffice it to say the judgment of the trial court is reversed under authority of City of Hesston v. Smrha, 184 Kan. 223, 336 P. 2d 428, and the case is remanded to the trial court with instructions to proceed in accordance with the views expressed in City of Hesston v. Smrha, 186 Kan. 477, 351 P. 2d 204.
It is so ordered.
Fontron, J., not participating. | [
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The opinion, of the court was delivered by
Brewer, J.:
This was an action on the case, brought by plaintiff against defendant Barnes, as sheriff of Neosho county, and against the other defendants as sureties on his official bond, for damages alleged to have accrued to him by reason of the negligence of Barnes while having the legal custody and control of plaintiff’s cattle.
The admissions in the pleadings establish the following facts: That in the month of August 1870, the plaintiff was the owner of certain cattle, at that time in his possession in said county; that on or about the 10th of August 1870, plaintiff was arrested and brought before T. F. Eager, a justice of the peace of said county, charged with having driven said cattle into the state of Kansas from the Indian Territory at a time prohibited by law; that the justice issued his writ, directed to said defendant Barnes as sheriff, commanding him to drive or cause to be driven said cattle without the state of Kansas, over the same route over which they had been driven in; that said writ came into the hands of said Barnes on the 11th of said August, and that he, under said writ, took the said cattle into his possession, and started to drive the cattle to the Indian Territory; that while they were being thus driven toward the southern boundary of the state, and while in the county of Labette, a number of individuals came upon them in the night-time, between the 12th and 13th days of August, and shot, killed, wounded and injured a number of said cattle. It is further admitted by the pleadings, that at the time of the alleged wrongs, etc., said Michael Barnes was the sheriff of the said county, and the other defendants were sureties upon his official bond. The question of fact presented by the pleadings was, whether the defendant Barnes, in the execution of said writ, was guilty of such negligence as to render him liable in law. Upon the trial of the cause the jury found the issues joined in favor of plaintiff, and assessed his damages at $2,080. On motion of defendants, the court below set aside said -verdict and granted a new trial, on the grounds that the verdict “ was not sustained by sufficient evidence, and was contrary to law.” To this order plaintiff excepted, and brings the case here for review. We have had several cases before us in which the action of the district court in granting a new trial has been made the subject of review, and the rules of decision in such cases are well settled, and have been often announced. Anthony v. Eddy, 5 Kas. 127; Field v. Kinnear, 5 Kas. 238; Atyeo v. Kelsey, 13 Kas. 212; McCrum v. Corby, 15 Kas. 112. Counsel for plaintiff in error seem to think that there is very little conflict in the testimony, and that there is an overwhelming preponderance of evidence in favor of the verdict. We are not so impressed by a perusal of the record. It seems to us that there was a fair question in the case, with conflicting testimony. .There was certainly testimony tending to show negligence, and if the court had approved the verdict it would as to this question have been conclusive upon us. But there was also testimony tending to show that the sheriff had used reasonable care and diligence in the matter. Indeed, if the testimony of the sheriff was all that there was in the case, one could scarcely read it without being impressed with the conviction that it would be grossly unjust to mulct him in damages for the loss of these cattle. Let us notice his testimony, and these are the facts appearing therefrom: The plaintiff being in possession of some southern cattle finds himself in trouble, his cattle seized by a mob, and. his life threatened, and gets a party to file a complaint charging him with violating the law in bringing -the cattle into the state between the 1st of March and the 1st of December, in order that the justice of the peace may issue his warrant to the sheriff to seize the cattle and drive them, over the route by which they were brought, back into the Indian Territory. The preliminary proceedings are had, and the warrant issued. The case is then continued for final trial several days, and when tried the plaintiff proves that he brought them in between the 1st of December and 1st of March, and is acquitted. A query arises right here, whether a party who thus prostitutes the process of the courts, by causing to be instituted against himself a quasi criminal prosecution, which he knows to be groundless, for the sole purpose of getting his property into the hands of the sheriff, can afterward recover anything from that officer in case of its loss, be the latter ever so negligent. But we forbear to press this query. The sheriff receives the warrant, and with three assistants starts to drive the cattle to the territory, the distance being about thirty miles. He calls upon the plaintiff to accompany them, but he refuses, though he now complains that the sheriff did not take force enough to protect the cattle. He drives until 11 o’clock at night, and then turns off the road and drives the cattle into a ravine where they are as far as possible concealed. About 2 o’clock some forty to sixty armed persons ride up and commence firing into the cattle. They were stampeded, some killed, and less than half ever recovered by plaintiff. The sheriff, though he had weapons, made no resistance to this armed party. The next morning he with his assistants hunted till nearly noon for the cattle, and then having had nothing to eat since the previous noon he went to a near village to get dinner and help. Unable there to get help, he returned to the county-seat. There he informed plaintiff’s counsel of what he had done, secured men to accompany him, but was detained a day waiting for horses which the counsel agreed to furnish. He subsequently made search for half a day, with four or five men in the vicinity of the place where the cattle were stampeded. He found where several had been killed, and the meat appropriated by individuals, but found only one alive, and that wounded. Led to believe that there were none to be found alive, he returned and reported to plaintiff the names of the parties who had the meat.
Counsel asserts, that, to sustain the allegation of negligence the plaintiff relied upon the following facts as testified to by witnesses on the trial: First, That defendant Barnes started to drive the cattle out of the state with only three men to assist him, after having received warning that the destruction of the cattle was threatened. But the sheriff says he called upon the plaintiff to go, and he refused. Can he now be heard to say that the sheriff did not summon force enough? He was under equal obligation with any other citizen to obey the call of the officer, and interested above all others. He was unwilling to risk his own life, and now wants the sheriff to pay him because he did not compel others to risk theirs. Second, That Barnes did not start with the cattle until two o’clock P.M. of the 12th, when he might have started in the morning, and by doing, so could have driven them out of the state that same day, and thus have avoided a night attack. But Barnes says that when he went to get the cattle he reached Barrett’s at ten o’clock a.m. and found them in the custody of a constable, and in the possession of armed men appointed by the constable who refused to give them up without word from that officer; that he was compelled to ride five miles to get him to come and turn over the cattle, and that hence he did not get started with them until two o’clock p.m. And so we might go on through the remaining five facts stated by counsel. Some, as the sixth, were denied by Barnes, and for others he gave his reasons for his conduct.
We do not mean to assert that the facts were as Barnes testified them to have been. That is a matter to be settled in the trial court, and as to that matter both court and jury must agree. All we assert is, that the testimony was not entirely one-sided — that there was much tending to show that the sheriff used reasonable care, or at least that the plaintiff was estopped from saying that he did not, and that therefore as the trial court was constrained to hold that the verdict ought not to stand, we must abide by its decision. It must be borne in mind that negligence is not one of those independent, absolute facts, like the signing of a note, to which the testimony goes directly pro and con, but is often one of those mixed questions upon which even .when the facts are entirely undisputed minds may often fairly disagree. That which seems negligence to one, may seem reasonable care to another. Especially therefore should there be agreement between the trial court and jury as to the existence of negligence before an officer is mulcted in heavy damages on account of its supposed existence in the discharge of his official duties.
The ruling 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.:
On the 20th of May 1875, defendant in error, in the district court of Leavenworth county, recovered judgment against the Westchester Fire Insurance Company, for the sum of $150, and her costs in that behalf expended. On the 3d of July 1875, a writ of execution of that date was issued on said judgment, directed to the sheriff of said county, to execute against the property of said company, returnable in sixty days from that date, which execution was by William H. Bond, sheriff of said county, received on the 5th of said July. Bond never returned that he had levied or made the amount of the debt, damages and costs, or any part thereof; nor did he return the execution to that court on or before the return-day thereof, but on the contrary made a return to the effect that an appeal-bond had been filed, when nothing of that kind had been done, and returned said execution on the 4th of September 1875, being more than sixty days after ,the date thereof — that is, said return was made on the third day after the return-day of said execution. Mrs. Weber thereupon gave the notice and made the motion to amerce said Bond, required and provided for by § 472 of the code. The sheriff, on the hearing of said motion offered his affidavit, alleging that he made the return in respect to the filing of an appeal-bond through mistake, from information received from the attorney of the defendant; that as a matter of fact the defendant had no property within the county, and asking leave to amend the return to show these facts, and also alleging that the failure to make return, within sixty days was owing to his mistaking the date of his receipt of the execution, and that he had no intention of withholding the same. The court sustained the motion to amerce, and the sheriff now alleges error. His counsel says in his brief: “This case involves merely a consideration of the statute of Kansas for the amercement of the sheriff — whether it is imperative, or discretionary with the court.” Accepting that as a fair statement of the case, we must answer that the statute is imperative, and not granting a discretion. The statute reads—
“Sec. 469. The sheriff * * * to whom any writ of execution shall be directed, shall return such writ * * * within sixty days from the date thereof.” (Gen. Stat. 220.)
Sec. 472, on the next page, reads— ■
“If any sheriff * * * shall neglect to return any writ of execution to the proper court on or before the return-day thereof, * * * such sheriff * * * shall, on motion in court, and two days’ notice in writing, be amerced in the amount of said debt,” etc.
If we give to this language its ordinary meaning, there can be but one conclusion. It is not that he may be amerced, but that he shall be. The duty of returning the execution within sixty days, is expressly cast upon him; and a failure to perform that duty as expressly subjects him to amercement. The terms of the statute imply no discretion. The command is positive and peremptory. The amercement is. not in compensation, and to be measured by the extent of the injury, but a penalty for neglect of duty, and of definite and fixed amount. Such were the views held in Ohio from which state we took this statute. In Duncan v. Drakely, 10 Ohio, 46, the court says: “In proceedings under the statute authorizing the amercement of an officer, great strictness is required, and he who would avail himself of the remedy therein provided must bring himself both within the letter and spirit of the law. It is right that it should be so, because the remedy is summary, and in its consequences highly penal. There is no trial by jury, and but little, if any, discretion left to the court.” And again, after enumerating the cases in which an amercement may be had, it adds: “While in an action at common law, á plaintiff in any of these cases would recover only the damages actually sustained, by seeking his remedy under this statute he is sure to recover, if he recover at all, the full amount of the debt, with the additional penalty. The object of the law is undoubtedly, to induce fidelity on the part of a sheriff, but if carried into execution, it sometimes operates very severely.” So also, in Moore v. McClief, 16 Ohio St. 50, the court uses this language: “The plaintiff's right to demand a judgment of amercement, in this case, can rest on no equitable ground, for the neglect of official duty of which she complains has done her no injury. The execution-debtor was wholly insolvent when judgment was recovered against him, and has continued to be so ever since. Her rights then are purely statutory. And if she makes a clear case for amercement under the statute, it is no defense against her, claim that she had not been damnified. The statute under which she proceeds is of a penal character; it affords a summary remedy, without trial by jury, for official delinquency; and, without regard to the amount of damages resulting in fáct from such delinquency, it leaves no discretion to the court as to the amount of the judgment to be rendered against the delinquent officer.” That the sheriff by his conduct in this case brought himself clearly within the terms of the statute, is unquestioned. His counsel sug gest nothing to the contrary, and we see nothing. True, no intentional wrong is shown; but it is neglect, which the statute reaches and punishes, and though it seems harsh and rigorous to impose the penalty, yet there is the statute. Ita lex scripta est. Its language is plain. Its meaning had been declared by the courts long before Kansas was a state. It grants no discretion. And it is as binding upon us as is any other Command of the legislature.
The judgment must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The single question in this case is, as to the constitutionality of section 18, page 881, of the General Stat utes. That provides in effect, that when upon a trial before a justice of the peace for misdemeanor it shall be found that the prosecution was instituted maliciously, or without probable cause, the prosecuting witness shall be adjudged to pay the costs, and unless a bond is given therefor shall be committed to the county jail until they are paid. It is objected that such an imprisonment would not be upon “ due process of law,” and that it could not be said that the prosecuting witness had had his “day in court.” We do not consider the objections well taken. By coming into court and filing his complaint, he submits himself to the jurisdiction of the justice, and at the same time that the question of the guilt of the person, by his affidavit charged with crime, is tried, his own conduct in the premises is inquired into. True, he is not upon the record as a party plaintiff, or defendant; but the prosecution is instituted at his instance, and he appears upon the record as the complaining party. Many civil proceedings were formerly in the name of the state upon the relation of some one. The party plaintiff was the state, but the relator was none the less within the jurisdiction of the court, and might be reached and concluded by its order. In analogy to those proceedings the legislature has said in substance, that he who files a complaint for misdemeanor shall bring both himself and the defendant into court. It is true also, that no formal accusation is presented against the complainant upon which he is tried and found guilty, and that the first written statement of his wrong is in the finding and order; but the same is equally true in many cases in commitments for contempt. There, often the first writing is the order of the court committing the offender for the contempt. The proceeding is summary; but it is clear, that it is due process of law, and that the offender has had his day in court. Indeed, it may well be considered that he who maliciously, or without probable cause, invokes the process of a court to oppress and wrong an innocent party, by placing him under arrest and upon trial for violation of law, is guilty of a contempt of court. He has by his own wrong sought to prosti tute the powers of the court to the injury of another; and that is conduct which merits, as it receives, the censure of all courts, and the condemnation of all persons.
Again, it is said that this is in conflict with section 16 of our bill of rights. “No person shall be imprisoned for debt except in cases of fraud.” But these costs are cast upon him as a penalty — they do not constitute strictly and simply a debt, in the technical sense of the word, any more than the fine imposed upon a party convicted of assault and battery, is a debt. The legislature has in eifect declared that an unwarranted appeal, in this class of eases, to the criminal law, is itself a violation of law, and subjects the offender to punishment; and the penalty imposed is the costs of the unwarranted proceedings. Shields v. Comm’rs of Shawnee County, 5 Kas. 590; State v. Donnell, 11 Iowa, 452; State v. Darr, 63 N. C. 516.
The order of the district judge will be reversed, and the case remanded for further proceedings in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The facts in this case are these: One Kenneth McLennan commenced an action of replevin before a justice of the peace against defendant in error, Albert A. Green. Eobert Hogg, the plaintiff in error, went on the replevin bond. At the time of. signing this bond McLennan gave to Hogg some personal property to hold as indemnity against loss by reason thereof. Judgment was rendered by the justice in favor of McLennan for one of several articles claimed, and costs. The ten days in which to perfect an appeal passed without the filing any bond, and Hogg returned to McLennan the property held as indemnity, notified McLennan’s attorneys not to consent to any appeal thereafter, and ordered out an execution. The execution was issued, and levied on enough personal property to satisfy it. Subsequently a stipulation for appeal was signed by the attorneys of the respective parties, kn appeal bond filed, and the case taken to the district court. There a trial was had, and judgment rendered in favor of Green for costs. An execution against McLennan was returned unsatisfied, and then this action was brought on the replevin bond to recover those costs. Is the plaintiff in error liable on the bond? We think he is. His bond was conditioned to pay all costs that might be awarded. Any arrangement for indemnity was personal to him and McLennan, and could not in the slightest degree affect his liability on the bond. Whether the same was known or not to Green, was entirely immaterial. One who signs a replevin bond assumes all the liability the law gives to such a bond, and can by no personal arrangement with the party for whom he signs limit or affect such liability. The bond is a protection to the adverse party, and he alone can release or relieve the surety. Nor has the surety, by virtue of signing the bond, any right to control the proceed ings in the action. His forbidding the attorneys to do this, and notifying them to do that, amounts to nothing. They are responsible to their clients, and look to them alone for directions. It would seem very much as though the surety in this case thought he had full control of the action, and could order out process, and stay proceedings, without regard to the wishes of the plaintiff. Neither is the surety discharged by a failure of the party to insist upon every legal right. Here the plaintiff waived the right to insist upon the filing of the appeal bond within ten days. It does not appear to have been a mere wanton act, for he had recovered judgment before the justice for only a small part of his claim. It is reasonable to suppose that he thought that he had a just claim to all he demanded, and that upon a further trial he could make it so appear, and therefore in all honesty and fairness waived the filing of the appeal bond within the ten days. He might have waived a bond altogether, and still the case have passed by appeal to the district court. The surety must abide the result of the Action, and it was the same action in the justice’s' and district courts.
The judgment will be affirmed.
Kingman, C. J., concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action of partition, tried by the court without a jury. The testimony was not preserved, and the case stands before us upon the pleadings, findings, and judgment. The findings are as follows:
“1st. Wab-che-qua, an Ottawa Indian woman, was owner in fee of the E. J of the N.W.^ of section 32, township 16, range 19, being 80 acres of land in Franklin county. She •died in the year 1864, leaving her husband, Pem-ach-wung, her sole surviving heir-at-law.
“2d. Kah-ptah-yah-sung, an Ottawa Indian boy, was the ■owner in fee of the E. J. of the S.E. J of section 31, township 16, range 19, being 80 acres of land in Franklin county. He died in the year 1864, at the age of 12 years, unmarried and without issue, leaving his father, Pem-ach-wung, his sole ■surviving heir-at-law.
“ 3d. Pem-ach-wung, an Ottawa Indian man, was the owner in fee of the two tracts above described, and of the W. J of the S.W.-J of section 32, township 16, range 19, being 240 acres of land in Franklin county. He died in the year 1864, leaving his children, Masko, Shah-ne-gush-go-qua, M-tah-yah, Zah-wis, Non-deo and Non-qui-ge-zhick, his sole surviving heirs-at-law.
“4th. Non-qui-ge-zhick, an Ottawa Indian boy, died in the year 1865, at the age of 4 years, unmarried and without issue; and Non-deo, an Ottawa Indian girl, died in the year 1866, at the age of 8 years, unmarried and without issue; and so the lands herein described descended to the four surviving children of Pem-ach-wung, vesting in each an undivided one-fourth interest in each parcel thereof.
“5th. On the 6th of September 1867, Masko, an Ottawa Indian boy, then 19 years of age, executed and delivered to Thomas Squires a conveyance for the lands herein described, and on the 7th of May 1872, Shah-ne-gush-go-qua, an Ottawa Indian girl, then 17 years of age, executed and delivered to A. J. Glover and others a conveyance for the lands herein described; and on the 29th of July 1872, A. J. Glover and others executed and delivered to Thomas Squires a deed for the lands herein described.
“6th. On the 18th of June 1873, M-tah-yah, an Ottawa Indian girl, then 17 years old, executed and delivered to C. P. Stevens and K. C. Glover a conveyance for the lands herein described; and on the 20th of June 1873,0. P. Stevens and K. C. Glover executed and delivered to G. S. Newman and W. M. Pickering a conveyance for the lands herein described.
“7th. On the 24th of May 1873, Zah-wis, an Ottawa Indian girl, then 16 years of age, executed and delivered to ¥m. H. Clark a conveyance for the lands herein described.
“8th. Thomas Squires was, at and before the commencement of this action, and has been ever since the year 1867, in exclusive possession of the lands herein described, and has improved and cultivated the same, and has lived on and cultivated a part thereof as a homestead.
“The court therefore finds, that Thomas Squires is the owner of an undivided one-half interest in the lands herein described; that Wm. H. Clark is the owner of an undivided one-fourth interest in the lands herein described; that G. S. Newman is the owner of an undivided one-eighth interest in the lands herein described; and that W. M. Pickering is the owner of an undivided one-eighth interest in the lands herein described.”
And upon these findings a decree in partition was entered. So far as the interests of the respective parties are shown by the findings, they warrant a partition; but it is claimed that the findings, taken in connection with the pleadings, show such an exclusive possession in Squires as amounts to an ouster of his co-tenants, and that therefore their title must be established by proceedings in the nature of ejectment before any partition can be decreed. How far the old rule of the equity courts concerning partition obtains in this state, and whether a party having the legal title but actually disseised must first by an action-at-law recover possession before proceeding to obtain partition, are questions we do not deem necessary for decision, although presented by counsel for plaintiff in error. The question is discussed at some length in the following cases cited by him: Deery v. McClintock, 31 Wis. 195; Lambert v. Blumenthal, 26 Mo. 473; Florence v. Hopkins, 46 N. Y. 182; Penrod v. Damer, 19 Ohio, 218; Tabler v. Wiseman, 2 Ohio St. 211. In 1868 a change was made in the statute concerning partition. • Prior to that time the statute seemed to define between whom partition might be made. It read, “that all joint-tenants, tenants-in-common, and coparceners of any estate in lands, tenements, and hereditaments within this state, may be compelled to make or suffer partition of such estate.”’ Comp. Laws, 740, § 1. In the revision of 1868 this was left out, and in lieu thereof the statute simply reads, “When the object of the action is to-effect a partition of real property, the petition must describe the property, and the respective interests of the owners thereof, if known.” And an entire article of the code is devoted to the subject of partition, prescribing the proceedings necessary therein. Gen. Stat. 753, art. 26. But waiving this, and conceding that one actually disseised cannot maintain partition, we think the findings fail to show such disseisin. Exclusive possession of itself does not show a -disseisin. The presumption is, that the possession is held in subordination of the rights of co-tenants, and for their benefit. There must be not only an exclusive but an adverse possession, something to show an ouster, actual or constructive. In Wommack v. Whitmore, 58 Mo. 448, it is said that “the disseisin or an adverse possession amounting to an actual ■ ouster must be shown in order to prevent the right to an action for partition.” In 2 Preston on Abstracts, quoted approvingly in Owen v. Morton, 24 Cal. 373, the author uses-this language: “To disseise his companions, there must be such acts as are constructively equivalent to an ouster, as the denial of right to the rent, of any part, or the possession of any part of the land, or an exclusive possession for a long time so as to afford the presumption of a disseisin.” In Ricard v. Williams, 7 Wheat. 121, the court holds that “An ouster or disseisen is not indeed to be presumed from the mere act of sole possession, -but it may be proved by such •possession accompanied with a notorious claim of an exclusive right.” In Warfield v. Lindell, 30 Mo. 272, the court says, that “A possession of land by a tenant-in-common for twenty-six years, and an exclusive receipt by him of the rents and profits, without any account rendered, or any demand made, would not of themselves raise a legal presump tion of ouster by such tenant-in-common of his co-tenants.” See also, Coleman v. Clemants, 23 Cal. 245; Shaw v. Gregoire, 41 Mo. 407. It may fairly be deduced from these authorities, and many others, that mere possession, no matter how full and complete, does not of itself prove an ouster. There must be something to show a repudiation of the co-tenant’s right. The statute provides in actions for the recovery of real property, that when brought by tenants-in-common against co-tenants, in addition to the matters ordinarily required to be stated the petition must state that the “defendant either denied the plaintiff’s right, or did some act amounting to such denial.” Gen. Stat. 748, § 597. In other words, the plaintiff must show not merely that defendant is in full and entire possession, but also that he affirmatively repudiates the plaintiff’s rights therein. The findings show that Squires was in “exclusive possession.” Now the term “exclusive,” is sometimes used, it is true, to mean not exactly that the actual possession is sole and complete, but also that it is claimed to be rightfully so, and is held with the intent to exclude the possession of all others; but it is also frequently used to indicate simply that the party holds a full and complete actual possession. The party alone occupies the premises. It is not a joint occupation, but a single and exclusive one. The word being then often used in and fairly susceptible of the two meanings, we should, cert&ris paribus, be compelled to hold that the court intended that meaning which supported and harmonized with the judgment, rather than that which overthrows it. But we need not rest on this, for it is clearly shown, that during this period in which the court finds the exclusive possession was maintained, Squires recognized in the plainest possible manner the rights of some of the co-tenants, that is, by purchasing their interests and taking a conveyance thereof to himself. See 5th finding. In other words, while in full possession, (in the language of the court, in “exclusive possession,”) he shows that he does not consider himself the sole owner, and alone entitled to possession. He recognizes that his possession is subordinate to the rights of others, and seeks by purchase to enlarge the extent of his rights thereto. Surely, the court does not mean to say that he was denying and repudiating rights which he was at the same time purchasing.
We think that it cannot be said that it affirmatively appears that the court erred in entering the decree of partition upon the findings, and therefore it must be affirmed. So far as the interests of the mortgagee are concerned, it does not appear that they have suffered prejudice.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was a civil action for assault and battery, brought .by Peter Clippenger against John Ingram. The action was commenced January 25th 1875. The defendant answered by filing a general denial, February 16th. On April 6th, the defendant served a notice in writing upon the plaintiff that he (the defendant) would allow judgment'to be taken against him in such action for the sum of ten dollars. This notice was. drawn up and served in accordance with the provisions of section 523 of the civil code. (Gen. Stat. 732.) The plaintiff refused to accept the offer of the defendant, and so the action proceeded to trial and judgment. The trial was had before a jury, and the jury found a verdict in favor of the plaintiff and against the defendant, and assessed the damages at two dollars. The defendánt then moved the court, “that the plaintiff be taxed with all the costs in this case made in the case since the offer and tender of a judgment by the defendant to plaintiff,” and the court upon the hearing of the motion sustained the same, and rendered judgment accordingly. The judgment was rendered in favor of the plaintiff and against the defendant for two dollars, and costs made up to April 6th 1875, and in favor of the defendant and against the plaintiff for costs made subsequent to said April 6th. The plaintiff complains of this judgment, and asks of this court to have said judgment reversed so far as it taxes the costs which accrued subsequently to the making of the offer on April 6th 1875. The plaintiff claims that said section 523 has no application to this case, nor to this class of cases. He claims that it applies only to such cases as are founded upon contra'ct, and where the amount claimed is ascertainable by mere calculation, and is liquidated and certain. We know of no good reason 'however why the operation of said statute should be thus limited. Its operation is not thus limited by its own express terms. And we think there are many good reasons why its operation should not be thus limited. The statute, so far as it is necessary to quote it, reads as follows:
“The defendant in an action for the recovery of money only, may, at any time before the trial, serve upon the plaintiff or his attorney an offer in writing to allow judgment to be taken against him for the sum specified therein. * * * If the notice of acceptance [by the plaintiff] be not given [to the defendant] in the period limited, the offer shall be deemed withdrawn, and shall not be given in evidence, or mentioned on the trial.. If the plaintiff fails to obtain judgment for more than was offered by the defendant, he shall pay the defendant’s costs from the time of the offer.”
Is not this “an action for the recovery of money only?” If it is not, then what else does the plaintiff ask to recover? It is certainly not an action for the recovery of any specific real or personal property, or to enforce a lien, or to compel specific performance, to set aside any instrument, or proceeding; nor for injunction, mandamus, or quo warranto; nor for divorce, nor for any other specific relief aside from the recovery of money. And the last sentence in the statute above quoted certainly contemplates an uncertainty in the amount of the judgment that may be recovered. And as that sentence provides that “if the plaintiff fails to obtain judgment for more than was offered by the defendant, he shall pay the defendant's costs from the time of the offer,” we think a judgment may be rendered in the same action in favor of the defendant and against the plaintiff for such costs. There is no decision in any state, so far as we are informed, holding that said § 523, or any corresponding section, is not applicable to this class of cases, or that the judgment we have indicated is not a proper judgment in a case like the one at bar. In Ohio under § 498 of their code, (same as’ § 528 of ours,) which provides that in “an action for the recovery of money” the defendant may-“m eov/rt” offer to confess judgment, etc., and then if the plaintiff refuse to accept the offer and “on the trial, do not recover more than was so offered to be confessed, such plaintiff shall pay all the costs of the defendant incurred after the offer,” it was held, in an action “for a trespass upon the plaintiff's land, and injury to his cattle,” that the defendant might make the offer, and if the plaintiff refused, and then recovered less than was offered, judgment might be rendered in favor of the defendant and against the plaintiff for the defendant’s costs accruing after such offer. (Cartright v. Staggers, 15 Ohio St. 511.)
In the present case we think the plaintiff was entitled to recover costs only up to April 6th 1875, and the defendant was entitled to recover costs accruing thereafter. We think the court below committed no error in this case. Therefore the judgment of the court below will be affirmed.
Brewer, J., concurring.
Horton, C. J., not sitting in the case. | [
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The opinion of the court was delivered by
Brewer, J.:
The plaintiff in error was indorser of a promissory note; and the only question in the case is, whether the findings show such notice of protest as will make him responsible to the holder. The testimony is not preserved, and the case stands alone upon the pleadings and findings. The only finding which bears upon the question of notice is this:
“4th. That upon the same day the said notary placed in the post-office in the city of Fort Scott, Kansas, in an envelope, postage paid, which envelope was addressed as follows: ‘J. H. Couch, City,’ a notice, the contents of which he does not remember.”
Does this finding show notice of protest? and such a notice as will bind the indorser? We think not. It was the duty of Sherill, as plaintiff, and holder of the note, to prove that notice of protest was given to the indorser. There is no presumption in favor of the action of the notary, as official action, because it is no part of his duty as notary to serve notice. If he serve any notice, it is as agent of the holder, and not as notary. Hence, the finding as to notice is to be treated as though notice had been served by the holder. Now, what notice was served? Who1 can tell from these findings ? It does not even appear to have been a notice of protest. It may. have been, for all that the finding shows, as counsel <fcr plaintiff in error suggest, a notice about patent medicines. We cannot presume that the notice given was a notice of protest, and also that it was a sufficient notice of protest to charge the indorser.
As the case stands upon findings of fact unquestioned by plaintiff or defendant, we must reverse the judgment, and remand the case with instructions to enter judgment upon the findings in favor of the plaintiff in error, defendant below.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
In March 1868, John George proved that he had the preference of purchase to the la,nds in dispute, under article 17 of the treaty of 19th July 1866, between the United States and the Cherokee Indians, at its appraised value, and a certificate was executed to him, by the commissioners of appraisal appointed by the Secretary of the Interior, of their reception from him “ of his declaration of intention to purchase the lands, and that he had filed the required proof in support of the same.” Thereafter* said commissioners made a second and other allowance and award of said lands to Jane Phillips, under article 19 of the treaty, and a patent was issued to her for the lands by the United States. George alleges in his petition, that Phillips was not entitled -to said lands under article 19, or under any other provision of the treaty; that she obtained the award through partiality, corruption and bribery of the commissioners, and upon false testimony; that the award was arbitrarily approved by the secretary, and that Phillips held the lands in trust for George. The petition asks that Phillips be ordered to convey the land in question to George, or in case of refusal, that the decree should stand as a conveyance, etc. The petition does not state that George,had ever paid for the land, or offered to pay for the same; and it also fails to set forth the proceedings had by him to appeal from the award and allowance of the lands to Phillips, excepting as it states that “he (George) took steps at Washington City to contest before the proper authorities the right of said Phillips to said lands, and to establish his own, when the Secretary of the Interior instructed the land commissioner to adopt the report of the said commissioners as conclusive, and not to regard or listen to adverse claimants.” A demurrer was filed to the petition, as to the jurisdiction of the court of the subject-matter of the action, and that sufficient facts were not stated to constitute a cause of action. The demurrer was overruled, and judgment en tered for George, as prayed for. We are called upon by Phillips to review the action of the court below.
In Garland v. Wynn, 20 How. 6, the general rule is well stated to be, “that where several parties set up conflicting claims to property, with which a special tribunal may deal, as between one party and the government, regardless of the rights of others, the latter may come into the ordinary courts of justice, and litigate the conflicting claims.” It seems also well settled that persons who obtain patents by a suppression of a part of the facts in a case, or through fraud, corruption and bribery of the officials of the United States, will not be permitted, when their claims are questioned' in courts of equity, to derive any benefit thereby, and such patents will inure to the parties entitled to recover the lands. Comegys v. Vasse, 1 Peters, 212; Lytle v. The State of Arkansas, 9 How. 328; Cunningham v. Ashley, 14 How. 377; Barnard v. Ashley, 18 How. 44; Garland v. Wynn, 20 How. 6; Lytle v. The State of Arkansas, 22 How. 202. If George had filed a sufficient petition in the court below, he would have‘been entitled to the judgment decreeing him the land.
We pass to consider the question presented, whether the petition “states facts sufficient to constitute a cause of action.” Under the treaty, no person can obtain title to any of the lands ceded to the United States, until a sum of money is paid therefor, except certain Cherokee Indians are entitled to head-rights under article 19. If George had complied in every other respect with the provisions of article 17, except paying or offering to pay for the lands named, he would not have been entitled to receive a patent. The averments that “he is willing and hereby offers to pay to Phillips, or to any other person or party the appraised value, or such other sum or sums as the court may direct, and do all other things in the premises enjoined by equity and good conscience,” show no payment or offer of payment to the • United States. The allegation that Phillips has paid $2.50 per acre, the appraised value of the land, does not help the matter, because if the land was patented to her under article 19, the payment was voluntary, and without being required by the treaty; indeed, unauthorized' by law. If the patent was issued to Phillips under article 19, the officers could not legally have accepted any sum of money from her therefor. Article 19’ prescribes that “All Cherokees, being heads of families, residing at the date of the ratification of this treaty on any of the lands herein ceded, * * * if he shall elect to remain on the land now occupied by him, shall be entitled to receive a patent from the United States in fee simple for three hundred and twenty acres of land, to include his improvements ; and thereupon he and his family shall cease to be members of. the nation.” Again, before relief could have been granted to George in the district court, he must certainly have shown in his petition that his remedy before the officers provided for the express purpose of. passing upon such questions had been exhausted, and that he had not been guilty of laches. The allegations in the petition as to the proceedings to dispute the award of the commissioners, are not merely indefinite and uncertain, but fail to set forth what action was had. It is true, the petition states that George “took steps to contest the right of Phillips to the lands before the proper authorities.” But when, and how, said steps were taken, is not averred. It is not shown whether these proceedings were had before, or after, the issuance of the patent; nor does the petition affirmatively state that the rules and regulations prescribed by the Secretary of the Interior,, under the authority of the treaty, were complied with. We do not mean t,o say that George was obliged to do any useless or unnecessary thing; but he should have set forth the acts done by him, after the issuance to him of the certificate by the commissioners, so that the court could have ascertained upon what papers or matter presented the Secretary arbitrarily acted, and when such authority was exercised. The only power seemingly granted to the commissioners of appraisal by the treaty, is the right to appraise the property mentioned therein. The other acts performed by them must have been under the regulations .of the Secretary of the Interior. They did not have the full authority of the local land officers of the United States. We therefore conclude the petition is fatally defective; that the demurrer thereto should have been sustained for want of sufficient facts to constitute any cause of action, and that the court below erred in rendering judgment in the case.
The judgment must be reversed.
All the Justices concurring.'’
[*Tms case was brouglit to this court June 9th. 1875, almost three years after final judgment in the court below. In May 1876, defendant in error moved to dismiss the petition in error for failure of plaintiff in error to comply with Bule 11, (13 Kas. 7.) This motion was overruled. This opinion was filed January 17th 1877. And thereupon Messrs. MeComas & MeKeighan, counsel for George, defendant in error, filed a motion for a rehearing, and for a dismissal of the petition in error, alleging, first, that neither George nor his counsel had been advised and did not know that his former motion to dismiss had been overruled; second, that after the decision and judgment of the district court, and on the 20th of December 1872, and within the time limited by said judgment, he (George) paid to the clerk of the Cherokee district court, for the use and benefit of Mrs',Phillips, $300, as required by the district court, (statement of case, cunte, p.420,) and that Mrs. Phillips, subsequently, on the 25th of August 1874, (and before bringing the case to this court,) by her attorney-in-fact, L. T. S., had accepted said money so paid, thereby accepting the judgment and decree of the district court as final and conclusive. These facts were duly proven by affidavit, and on proper notice being given to Phillips, and upon the payment of the costs in this court, the judgment of reversal was set aside, and a rehearing was granted. And thereupon, on motion of George, and in accordance with the decision in Babbitt v. Corby, 13 Kas. 612, and Hoffmire v. Holcomb, ante, p. 378, the petition in error herein was dismissed.—Bepoeter.] | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action for damages as a result of injuries sustained by the plaintiff due to alleged defects in a county bridge. The trial court sustained a demurrer to the first amended petition, hereafter referred to as the petition, on the ground that it failed to state a cause of action, and appeal has been duly perfected from such order by the plaintiff.
The sole question is whether the defects alleged in the petition state a cause of action within the meaning of G. S. 1949, 68-301.
The pleading under attack alleged that on October 22, 1960, at 5:15 a. m. the appellant (plaintiff) was riding as a passenger in the right front seat of a 1952 Ford automobile owned, driven and controlled solely by her husband. The appellant alleged she was painfully and permanently injured by the negligence of the Sumner County commissioners, whose duty it is to maintain county bridges, and pursuant to the provisions of G. S. 1949, 68-301, she instituted this action to recover damages for her injuries. The specific allegations material to this appeal read:
“n.
“The plaintiff alleges that on County Road No. 29 in Down’s Township at a point approximately three and one quarter miles north of Corbin in Sumner County, there exists a certain county bridge. It is approximately 20 feet wide and 30 feet long, running north and south. It is of wood construction, framed in steel. The floors are wooden, running east and west; that at a time unknown to the plaintiff, but well known to the defendant herein, responsible county employees in an effort to repair or salvage the flooring referred, extended 3 x 10 planking over the flooring, running the same longitudinally or north and south with the road; that sufficient planks were laid to provide two tracks approximately 30 inches wide, 3 inches high and approximately 5 feet apart. . . .
“The plaintiff further alleges that the placement of the 3 x 30 inch tracks in the manner described rendered the bridge unsafe, hazardous, inadequate and dangerous for public traffic, and thus defective within the meaning of G. S. 68-301.
“Plaintiff further alleges that the 3 x 10’s were by weather, elements and use permitted to wear, rot and split, particularly at the north end of the bridge; that the 3 x 10’s were smooth and worn to such an extent that in wet or rainy weather the tracks were extremely slick and hazardous; that by reason thereof, said bridge was further defective within the meaning of G. S. 68-301.
IV.
“Plaintiff alleges that on the date and time referred, she and her husband were proceeding north on County Road No. 29, and approached the bridge' referred; it was dark and the weather was damp and foggy. The plaintiff’s husband drove onto the tracks and proceeded north to a point where the left front wheels of his automobile, by reason of the slickened condition of the 3 x 10’s and a splintering of the outer portion of these 3 x 10’s drove off the tracks, throwing his automobile out of control and into a ditch to the left or west of County Road No. 29, causing severe, painful and permanent injuries to the plaintiff as hereinafter shown.”
Other allegations are immaterial to this appeal, and it is conceded if the specific allegations above quoted allege a defect within the meaning of the above statute, the petition states a cause of action.
G. S. 1949, 68-301, provides in part:
“Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge, . . . may recover such damage from the county . . . wherein such defective bridge, ... is located, as hereinafter provided; that is to say, such recovery may be from the county when such damage was caused by a defective bridge, . . . which by law, . . . the county is obligated to maintain, . .
Basically the defects claimed by the appellant are two in number. As expressed in the appellant’s brief they are: (1) The laying of 3 by 10 planking in a north-south direction across the original flooring, thereby providing two tracks approximately 30 inches wide, 3 inches high and approximately 5 feet apart therein rendering the bridge unsafe, hazardous, inadequate and dangerous for public traffic; and (2) that the 3 by 10’s were permitted to wear, rot and split, particularly at the north end, causing them to be smooth and worn so that in rainy weather they were extremely slick and hazardous.
It is to be noted the petition does not allege any collapse of the bridge, any holes in the bridge, or any defective railings, or that any structural part of the bridge gave way causing appellant’s damage. It is further noted the petition does not allege that the accident itself happened on the bridge, but alleges that the appellant’s husband, while driving, lost control of the vehicle while crossing the bridge and went off the highway into a ditch on the left side of the road after he had left the bridge and was driving on the highway. It is not claimed that there was a defect in the highway.
The statute in question does not impose liability for general negligence. It is strictly a statutory liability for defects in bridges, culverts and highways. (Rockhold v. Board of County Commissioners, 181 Kan. 1019, 317 P. 2d 490; and Blessman v. State Highway Comm., 154 Kan. 704, 121 P. 2d 267.)
Whether an alleged defect comes within the purview of the statute is, in the first instance, a question of law to be determined by the court. (Cronin v. State Highway Commission, 182 Kan. 42, 318 P. 2d 1066; and Earnest v. State Highway Commission, 182 Kan. 357, 320 P. 2d 847.)
In the Earnest case it was said:
“. . . There is no legal foot rule by which to measure conditions generally and determine with exact precision whether a given condition constitutes a defect. Some conditions may be so patently dangerous as to clearly constitute defects, while others may be so trifling as to be clearly outside the purview of the statute. The policy of courts is to handle each case separately and either to include it in or exclude it from the operation of the statute. . . .” (p. 359.)
A similar statement is found in Gorges v. State Highway Comm., 135 Kan. 371, 373, 10 P. 2d 834.
Does the presence of parallel plank tracks elevated three inches on a bridge render it defective?
As we read the appellant’s brief, she contends the placement of the 3 by 10 planks in the manner alleged constitutes a defect per se.
This point goes to the design and construction of the bridge itself. It may be argued that if the bridge were to be built new at the present time, such tracks would not be used. But such bridges are not uncommon in Kansas. It would be an intolerable financial burden for the already hard-pressed taxpayers of a county to be required to alter or replace all steel and wood bridges of similar design simply because newer and better designs were used in the construction of bridges today.
Whether a given condition constitutes a defect within the meaning of 68-301, supra, is relative. It must be compared with the general conditions and surrounding circumstances. (Earnest v. State Highway Commission, supra.)
The principle involved on the present point under consideration has previously been recognized by this court in Hill v. State Highway Comm., 143 Kan. 129, 53 P. 2d 882, where it was said:
“The progress that has been made in the building of hard-surface highways of all types, together with the perfection of the automobile, has presented to the courts many new problems. Not the least vexatious among them is the oft-recurring one of whether a certain condition constitutes a defect in a highway. Obviously not every trifling imperfection can be held to come under that category. To so hold would make the highway commission the insurer of travelers upon the state highway system. Such was not intended by the legislature. (See Gorges v. State Highway Comm., 135 Kan. 371, 10 P. 2d 834.) It would be fine if all the highways were absolutely smooth and devoid of curves and comers and with every bridge and culvert wide and smooth. The situation with which the commission is confronted, however, is a practical one. There are many miles of highway in the state system and it is all subject to the wear and tear of travel, to ordinary occurrences common to all roads and to the natural wear and change due to exposure to the elements. To require the highways to be kept in perfect condition at all times would place a drain on the highway fund not contemplated by the legislature. . . .” (pp. 134, 135.)
(See, also, Parsons v. State Highway Comm., 146 Kan. 476, 72 P. 2d 75.)
A narrow culvert or a one-lane culvert on a two-lane highway has been held not to constitute a defect within the meaning of the statute. (Wilson v. Barber County Comm'rs, 154 Kan. 525, 119 P. 2d 502; and Sell v. McPherson Township, 152 Kan. 731, 107 P. 2d 670.)
We have no hesitance in holding that the manner in which the bridge in question was constructed does not make the bridge defective within the meaning of the statute.
Does the allegation that the 3 by 10 planks were permitted to wear, rot and split, particularly at the north end, causing them to be smooth and worn so that in rainy weather they were extremely slick and hazardous allege a defect under 68-301, supra?
There is no claim in the allegation relied upon that the bridge was slick or defective in dry weather. Furthermore, there is no allegation that any wearing, rotting or splitting produced any holes or rough places in the bridge. Actually, the allegation is that the bridge was slick in wet weather by reason of the conditions stated.
It has previously been held by this court that slickness is not a defect within the meaning of the statute in question and that results of the elements and weather are not actionable. In Gorges v. State Highway Comm., supra, an accumulation of ice on a state highway was determined not to be a defect within the meaning of the statute. (G. S. 1931 Supp., 68-419, similar to 68-301, supra.) It was said in the opinion:
“. . . The state, through the highway commission, has under its supervision and control 8,690 miles of road and it would be an unreasonable burden to impose upon the state the duty of keeping highways free from the accumulation of ice during the winter months. Winter brings frequent, recurring storms of rain and snow and sudden and extreme changes in temperature which defy prevention, and usually before correction can be made by any means within the control of the state highway commission it is accomplished by sunshine. To hold that liability resulted from these actions of the elements would be an affirmance of a duty which this court is not warranted in interpreting into the statute.” (pp. 373, 374.)
An accumulation of oil which created a slick and slippery condition was held not to constitute a defect in a state highway under the provisions of G. S. 1949, 68-419, in Sheen v. State Highway Commission, 173 Kan. 491, 249 P. 2d 934. Although this court has on occasion remarked by way of observation that a dangerous condition in a highway is a defect in the highway, it did not state that any dangerous condition was per se a defect under the statute— one creating liability. In addition to being dangerous, a condition must also be one the legislature is deemed to have intended to fall within the statute creating liability. (See, Sheen v. State Highway Commission, supra.)
In conclusion we hold the allegations of the petition under attack did not allege the bridge in question to be defective within the meaning of 68-301, supra, creating liability, and by reason thereof it failed to allege sufficient facts to constitute a cause of action.
The judgment of the lower court is affirmed.
Fontron, J., not participating.
Wertz, J., dissenting. | [
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The opinion of the court was delivered by
Price, J.:
This was an action to recover for personal injuries sustained by plaintiff when she slipped and fell on the floor of defendant’s store. Defendant has appealed from a verdict and judgment in favor of plaintiff.
The petition charged defendant company with negligence in placing oil, wax, grease, or other slippery substance, on the floor of its store, and in permitting such accumulation to remain, and in failing to give plaintiff any warning thereof. Recovery was sought in the sum of $10,000.
The answer, after denying plaintiff’s allegations of negligence, alleged that plaintiff’s injuries were the result of contributory negligence, or that the same were the result of an accident for which defendant was in no way liable.
Plaintiff’s evidence was to the following effect:
She was forty-three years of age, and for the past ten years had been employed as a clerk and bookkeeper at a drug store across the street from defendant’s store. On December 21, 1959, about 9:30 a. m., she left the drug store and went across the street to do some Christmas shopping in defendant’s store. The weather was bright and dry. Upon entering defendant’s store she proceeded down a regular aisle toward the rear when suddenly her feet flew out from under her and she fell to the wooden floor. She was considerably “embarrassed” but was able to get up by herself. Upon looking to see what had caused her to fall she observed “a large brown oily or greasy spot” which looked “like it would be caused where you used a sweeping broom and left sweeping compound set for a little while before it was removed.” The spot was darker in color than the rest of the floor, but she did not reach down and feel it. Reing “embarrassed and shook up,” she immediately left the store and went across the street to the drug store. Her dress had a dark greasy and dirty spot on it where she had “sat down,” and she sent it to the cleaners.
One of defendant’s employees heard, but did not see, plaintiff fall. This employee, upon investigation, did not see anything at the point where plaintiff had fallen. Shortly thereafter plaintiff reported her fall to defendant’s manager. At a later date, in a conversation with the janitor-stock boy at defendant’s store concerning methods used in cleaning or sweeping the floor, she was told by him that “we don’t gob it on any more.”
Defendant’s evidence was to the effect that shortly after plaintiffs fall its manager and another employee inspected the spot where plaintiff had fallen but found nothing in the way of any foreign substance which would have caused the fall, and that the floor at the place in question was no different than the rest of the floor.
At the conclusion of the evidence the court submitted six special questions which, together with the jury’s answers, were as follow:
“Question No. 1: Do you find that the defendant was negligent as defined by the Court in any of the particulars alleged by the plaintiff?
“Answer: Yes.
“Question No. 2: If you answer Question No. 1 ‘Yes,’ set out the negligence or negligent conduct?
“Answer: Allowing something to be present on the floor which caused the customer to slip and fall.
“Question No. 3: Do you find the plaintiff guilty of negligence which caused or contributed to her injury?
“Answer: No.
“Question No. 4: If you answer Question No. 3 ‘Yes,’ set out the negligence or negligent conduct?
“Answer: No.
“Question No. 5: If you answer Question No. 1 ‘Yes,’ do you find that the negligence or negligent condition ought to have been discovered by the defendant by the exercise of reasonable care?
“Answer: Yes.
“Question No. 6: If you answer Question No. 1 ‘Yes,’ do you find the negligence or negligent conduct was created or maintained by the defendant?
“Answer: Yes.”
In addition to the special findings the jury returned a general verdict for plaintiff in the amount of $3,625.
Following the overruling of its motion for a new trial, defendant appealed.
In its brief defendant states that it is not raising any question as to the extent of plaintiff’s injuries or as to the amount of the verdict. Basically, its contention appears to be that under the evidence presented plaintiff simply established no right of recovery.
Defendant first contends the trial court erred in overruling its demurrer to plaintiff’s evidence and in overruling its motion for a directed verdict at the close of all the evidence. Notwithstanding that each of those rulings is specified as error, neither was appealed from and therefore neither is subject to review by this court. (See Blackburn v. Colvin, 191 Kan. 239, syl. 1, 380 P. 2d 432, and the cases cited.)
It next is contended the court erred in overruling its motion for judgment notwithstanding the verdict, and that the verdict and special findings are not supported by the evidence.
As to the first proposition, there is no inconsistency between the special findings and the general verdict, and the special findings are consistent with each other. And neither may it be said there was no evidence to support the verdict and special findings. Plaintiff’s evidence, while rather “skimpy,” so to speak, in the sense there was very little corroboration, was sufficient to present to the trier of the facts for belief or disbelief. No question is raised concerning the instructions as to the law applicable to the duty owed to a business invitee, or as to any other aspect of the case. Apparently the jury simply chose to believe plaintiff’s testimony to the effect there was some slippery foreign substance on the floor which caused her to fall and which was there as the result of defendant’s own conduct and operation of its business.
With respect to the contention the court erred in overruling its motion for a new trial, defendant raises only one question — that being the refusal of the trial court to submit five special questions which asked the jury whether there was a slippery substance on the floor as alleged by plaintiff, and, if so, what it was, how it got there, how long it had been there, and whether defendant had notice of its presence.
Considering the evidence and the wide discretion allowed a trial court in submitting special questions, we believe defendant’s contention lacks substantial merit. For the reason that plaintiff simply did not know — there was no direct evidence as to just what the slippery substance on the floor consisted of, or as to how it got there and how long it had been there. Questions Nos. 1, given and refused, were essentially identical. Question No. 5, refused, asked if defendant had notice of the presence of the substance on the floor — whereas question No. 5, given, asked whether the negligent condition ought to have been discovered by defendant in the exercise of reasonable care. Ry its answers to questions Nos. 5 and 6, above, the jury found that the condition was created or maintained by defendant, and that it should have been discovered by defendant in the exercise of reasonable care. For a discussion of the rule relating to the necessity of notice on the part of a storekeeper of a negligent condition, see Little v. Butner, 186 Kan. 75, 81, syl. 5, 348 P. 2d 1022. Under the evidence and in the light of those questions submitted, defendant was in no way prejudiced by the refusal to submit the five requested special questions.
And finally, it is argued the trial court erred in fixing the date from which interest on the judgment should run. The verdict was returned on October 16, 1962. Post-trial motions were overruled on November 15, 1962. Interest on the judgment was ordered to run from October 16, 1962 — the date of the verdict. Under the provisions of G. S. 1949, 60-3117, as construed in Koontz v. Weide, 111 Kan. 709, syl. 8, 208 Pac. 651, and Degnan v. Young Bros. Cattle Co., 152 Kan. 250, 258, 259, syl. 6, 103 P. 2d 918, the allowance of interest from the date of the verdict was proper.
We find no error in the record and the judgment is affirmed.
Fontron, J., not participating. | [
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|
The opinion of the court was delivered by
Hatcher, C.:
These appeals are from judgments rendered on petitions to review the orders of the State Corporation Commission determining the market demand for natural gas in the KansasHugoton Gas Field for the six-months period beginning October 1, 1959, and extending through March 31, 1960, and also the monthly allowable for each month of such period.
The orders were litigated in two forums. The district court of Stevens County, Kansas, entertained separate petitions to review filed by Panhandle Eastern Pipeline Company (Panhandle) and Southwest Kansas Royalty Owners’ Association (Royalty Owners’). They challenged the orders, contending that the determination of market demand and allowable production was unreasonably low. The district court of Finney County, Kansas, entertained separate petitions to review filed by Northern Natural Gas Company (Northern Natural), Cities Service Gas Company (Cities Service), Colorado Interstate Gas Company (Colorado Interstate), and Kansas-Nebraska Natural Gas Company (Kansas-Nebraska). They challenge the orders contending, among other things, that the determination of market demand and allowable production was unreasonably high. (The parties will hereinafter be identified as indicated in the parentheses.)
The separate petitions for review filed in the Finney County District Court were consolidated for hearing. The separate petitions for review filed in the Stevens County District Court were also consolidated. All the appeals involve the same orders and the same record. They will be considered in a single opinion.
The questions presented by these appeals were determined in Colorado Interstate Gas Co. v. State Corporation Comm., 192 Kan. 1, 386 P. 2d 266 insofar as they challenge the Commission’s orders for the reason that they are not supported by a substantial competent evidence; they violate the provisions of the Gas Conservation Act or the Commission’s basic order; they constitute an interference with interstate commerce; they invade the province of the Federal Power Commission under the Natural Gas Act, or they violate the due process clause of the United States Constitution or impair the obligation of contracts. Undue repetition will be avoided if we incorporate that opinion here by reference as determinative of the issues mentioned. We do so.
There remains for determination the jurisdictional dispute between the two district courts, and the constitutionality and effect of G. S. 1961 Supp., 55-703, which amended G. S. 1949, 55-703.
On December 15, 1959, following the overruling of petitions for rehearing, Royalty Owners’ filed petitions for judicial review of the market demand order and the October allowable order in the district court of Stevens County, Kansas. On December 16, 1959, Panhandle filed similar petitions for review in the same court. Subsequent thereto, Northern Natural, Cities Service, Colorado Interstate, and Kansas-Nebraska filed petitions for judicial review, respectively, of each of said orders in the district court of Finney County, Kansas. Thereafter, all six parties filed their several petitions for judicial review of each of the other monthly allowable orders, covering the period involved, in their chosen jurisdiction.
It would serve no useful purpose to review the various motions filed by the parties in an effort to bring all parties before the court of their preferred jurisdiction, or the orders in connection therewith.
It should be noted that the district court of Stevens County, subsequent to the hearing on the merits, ruled that the Commission’s order is not subject to piecemeal review from case to case and court to court.
The district court of Finney County, subsequent to the healing on the merits, ruled that each party was entitled to maintain a separate proceeding for review and that the only parties to the proceedings were those named in the captions of the petitions for review.
The district court of Stevens County held a hearing on February 13, 1960, at which Northern Natural, Cities Service, and Colorado Interstate did not appear, although they received notice. On March 10,1960, the court entered its judgment in which it found:
“That the Report and Order dated November 10, 1959, and subsequent allowable orders of the State Corporation Commission are based on substantial competent evidence and are lawful and valid. Said report and order makes reasonable provisions for an orderly process correcting inequities (existing for more than ten years and which have progressively increased) discriminating in favor of the correlative rights of producers and royalty owners in the Oklahoma Hugoton Gas Field and against those in the Kansas Hugoton Gas Field; as provided by the Statutes of Kansas, Section 55-703, 1959 supplement.”
The judgment of the district court of Stevens County affirmed the orders in controversy.
The district court of Finney County held a hearing on February 23, 1960. Panhandle and Royalty Owners’ were not permitted to participate because they had not filed petitions for review in that court. On May 26, 1960, the court entered its judgment holding valid the market demand order for the six-months period beginning October 1, 1959, extending through March 31, 1960. It further ordered that:
“. . . the several monthly proration orders entered by the State Corporation Commission for October, 1959, monthly, through March, 1960, should be, and the same are hereby, reversed and set aside insofar as the net allowables there set forth are greater by virtue of underages, either canceled or carried forward as a result of the Commission’s departing from its former method of determining allowables beginning May, 1956, to October 1, 1959; and such monthly proration orders entered by the State Corporation Commission for the months of October, 1959, through March, 1960, are affirmed insofar as such orders disclose market demand and current allowables without adjustment to runs as determined by the Commission and net allowable determined by adding underage or subtracting overage from current allowable, so long as such underage or overage accrued since October 1, 1959; . . .”
It would serve no useful purpose to take time and space to align the parties as they appear before this court with their numerous appeals and cross-appeals. We will proceed to determine the jurisdictional questions presented.
Before an action may be brought by any party to a proceeding resulting in an order by the Commission, a petition for rehearing must first be filed with the Commission under the provisions of G. S. 1949, 55-606. The statute provides further:
“. . . Such action may be brought by any person aggrieved, whether or not such person was the applicant for rehearing, within thirty days after the denial of the petition for rehearing, or, if rehearing is granted, then within thirty days after the final decision by the commission. . . .”
Once the petition for rehearing is concluded, any person aggrieved, whether or not such person filed a petition for rehearing, may file a petition for judicial review. One application for rehearing will suffice for all. The statute does not anticipate that the Commission need be troubled by petitions for rehearing on the part of all the parties or persons that may be interested in an investigation or hearing, or aggrieved by the order resulting therefrom.
The statute contemplates but one action or petition for review of an order of the Commission. It does not anticipate separate actions by separate parties in different courts where a single order is involved. Once a petition for review is filed in a Court of competent jurisdiction, all interested parties may intervene and protect their rights.
The parties interested in the hearing out of which the orders in this controversy grew are numerous and varied. Many are aggrieved. The reviewing court is not concerned with individual grievances of numerous parties or with resolving disputes between parties. Its sole responsibility is to review and determine the validity of the Commission’s order.
The district court of Finney County was of the opinion that each party aggrieved by an order of the Commission was entitled to maintain a separate petition to review an order of the Commission and that such separate actions could be brought in any county of proper venue. The statute does not so provide. That part of G. S. 1949, 55-606, material to this question states:
“Any action for judicial review of any . . . order or . . . may be brought ... in the district court of any county in the state wherein the property affected thereby is located, or, if the property affected thereby is located in different counties, then the jurisdiction shall he in either of such counties.
If the property affected by the order is located in different counties, the jurisdiction to review the order will lie in either, not both. In Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 176 Kan. 561, 271 P. 2d 1091, it was held in paragraph 2 of the syllabus:
“The primary purpose and intent of creating a court of judicial review, as a part of the oil and gas conservation act, in which actions may be brought to review any rule, regulation, order or decision of the state corporation commission was: (a) To require interested parties to present their evidence and contentions to such commission; and (b) to eliminate the uncertainty and confusion which could, and probably would, result from the filing of numerous independent actions by the various parties affected by an act, or acts, of the commission, when in such independent actions the court would be deprived of the benefit of the complete record on which the action of the commission was based.”
The law is well settled that where there is concurrent jurisdiction in more than one court the court which first acquires jurisdiction retains it to the exclusion of another court which is requested or seeks to assume it. (Hoard v. The Home State Bank, 176 Kan. 624, 272 P. 2d 1054; Shields v. Fink, Executrix, 190 Kan. 17, 372 P. 2d 252; Walker v. McNutt, 165 Kan. 533, 196 P. 2d 163; Charvat v. Moore, 167 Kan. 336, 205 P. 2d 980.) The court first acquiring jurisdiction may draw to itself all the issues and enjoin parties from litigating them elsewhere. (Graves v. National Mutual Cas. Co., 164 Kan. 267, 188 P. 2d 945.)
The district court of Stevens County first acquired jurisdiction to review the market demand order for the period beginning October 1, 1959, and extending through March 31, 1960, and the October and November, 1959, allowable orders. The district court of Stevens County could have drawn all the issues to it and enjoined the parties from proceeding in another court of concurrent jurisdiction.
The district court of Finney County was without jurisdiction to review the orders.
The 1959 amendment to the Gas Conservation Act being Chapter 237 of the Laws of 1959, now G. S. 1961 Supp., 55-703, is challenged on numerous constitutional grounds. It is first contended that the act is in violation of section 16, article 2, of the Constitution of the State of Kansas, which reads: “No bill shall contain more than one subject, which shall be clearly expressed in its title. . . .”
The title to the act reads: “An act relating to the production and conservation of natural gas; amending section 55-703 of the General Statutes of 1949, and repealing said original section.”
The amendment which is subject to the challenge here is found in the last proviso of the act which reads:
“. . . Provided further, however, That the provisions of this act shall not apply to any common source of supply in which the average open flow of all the producing wells therein is not in excess of seven hundred fifty thousand (750,000) cubic feet per day. The commission in determining the market demand for gas from a common source of supply shall consider the reasonable current requirements for current consumption and use within and without the state, and such other factors, conditions, or circumstances that would aid in establishing the market demand. (The italics identify the amendment which was added.)
The title to the act is broad enough to cover any provision relat ing to the production and conservation of natural gas. Insofar as the determination of market demand is material to the conservation of natural gas, it is included in a title relating to the production and conservation of natural gas.
A title is sufficient if it indicates clearly, though in general terms, the scope of the act. The more general the language of the title, the broader the subject matter of the act may be. It is not necessary that the title be an index, a synoposis, or an abstract of the entire act in all its details. The purpose of the title is to inform the legislature and the general public of the subject under consideration.
The contention that the act deals with unrelated subjects cannot be sustained. The determination of market demand is pertinent to the regulation of production and conservation of gas. In determining the market demand for gas from a common source of supply, the consideration of factors, conditions, or circumstances that would aid in establishing the market demand are germane to regulating production and conservation of gas.
Those who are interested in pursuing further the construction, purpose, and effect of section 16, article 2, of the Constitution of the State of Kansas should see In re Sanders, Petitioner, 53 Kan. 191, 36 Pac. 348; Rathbone v. Hopper, 57 Kan. 240, 45 Pac. 610; State, ex rel., v. McCombs, 129 Kan. 834, 284 Pac. 618; City of Lawrence v. Robb, 175 Kan. 495, 265 P. 2d 317; State, ex rel., v. Kansas Turnpike Authority, 176 Kan. 683, 273 P. 2d 198; State, ex rel., v. Urban Renewal Agency of Kansas City, 179 Kan. 435, 296 P. 2d 656; State, ex rel., v. City of Wichita, 184 Kan. 197, 335 P. 2d 786; and Water District No. 1 v. Robb, 182 Kan. 2, 318 P. 2d 387.
It is contended that the act constitutes an unlawful delegation of legislative authority.
The 1959 amendment (G. S. 1961 Supp., 55-703) did not delegate any additional authority to the Commission requiring new standards to guide it. Rather it designated standards which were appropriate for the Commission to use in exercising the authority previously granted. (G. S. 1949, 55-703.)
If the Commission was to determine market demand six months in advance, certainly it was necessary for it to consider the market demand without the state, as very little of the gas was sold within the state. The Commission was also obligated to consider “such other factors, conditions or circumstances” as would aid it in properly determining the market demand.
The determination of market demand under the provisions of G. S. 1961 Supp., 55-703, is chiefly for the purpose of determining when the Commission shall take jurisdiction of a gas field. The Commission shall exercise jurisdiction “whenever the available production of natural gas from any common source of supply is in excess of the market demands” and other conditions exist. In Water District No. 1 v. Robb, 182 Kan. 2, 318 P. 2d 387, it was held:
“While the legislature cannot delegate its constitutional power to make a law (Article 2, Section I, Kansas Constitution), it can make a law which delegates the power to determine some fact or state of things upon which such law shall become operative.” (Syl. 6.)
In State, ex rel., v. Fadely, 180 Kan. 652, 308 P. 2d 537, it was held:
"The legislature may not delegate its power to make laws but may enact a law in general terms which confers upon an officer or board administrative duties to enforce and apply the law, and, to accomplish that end, to ascertain the existence or non-existence of some future fact, event or condition which the officer or board is required to ascertain; but, the statute must prescribe reasonably clear standards by which those vested with the duty to make the statute operate will do so in the manner intended. Where, however, the discretion to be exercised relates to a police regulation for the protection of the public morals, health, safety or general welfare, and it is impossible or impracticable to provide such standards and to do so would defeat the legislative object sought to be accomplished, legislation conferring such discretion may be valid and constitutional without such restrictions and limitations.” (Syl. 7.)
In The State v. Railway Co., 76 Kan. 467, 92 Pac. 606, affirmed Mo. Pac. Ry. Co. v. Kansas, 216 U. S. 262, 54 L. Ed. 472, 30 S. Ct. 330, the court had under consideration the constitutionality of the Article 3, Chapter 84 of the General Statutes of 1901, creating a Board of Railroad Commissioners, now the State Corporation Commission. The statute placed upon the board the responsibility of determining a “reasonable charge for services rendered” by railroads. (G. S. 1901, Sec. 5981.) The term “reasonable charge” was not defined, nor were there any standards by which reasonable charges were to be determined. The court, in considering the general constitutionality of the act, held:
“The act does not delegate to the board of railroad commissioners legislative powers. The legislature in the exercise of its power to regulate and control public corporations, such as common carriers, may delegate to a board of railroad commissioners certain functions administrative in character which cannot well be performed by the legislature itself." (Syl. 2.)
G. S. 1961 Supp., 55-703 does not contain any unlawful delegation of legislative authority.
G. S. 1961 Supp., 55-703 does not violate the due process and equal protection clauses of the federal and state constitutions.
We stated in Colorado Interstate Gas Co. v. State Corporation Comm., 192 Kan. 1, 386 P. 2d 266, that the Commission was obligated to consider evidence of all factors which were pertinent to the determination of market demand under the provisions of G. S. 1949, 55-703. This necessarily included all factors mentioned in the last proviso of G. S. 1961 Supp., 55-703. The Commission’s abandonment of the practice of deducting past monthly underages from current allowables was also approved. The constitutional objections raised in connection with the two matters were fully considered and determined. It would serve no useful purpose to repeat here what was said in that case.
The question is presented, if the Commission was permitted or obligated under the provisions of G. S. 1949, 55-703, to consider the factors mentioned in the last proviso of G. S. 1961 Supp., 55-703, in determining market demand, why the amendment? An examination of the record and the contentions made in the briefs clarify the matter.
The Commission for many years had considered only the nominations of the pipeline companies in determining market demand. It finally became apparent to the Commission that its method of determining market demand and calculating allowables had no relation to the actual market demand in the field, and that the field was being detrimentally affected by its restrictive determinations and calculations. When the Commission attempted to make corrections by considering all material factors, its orders were set aside by a district court.
The legislature desired to make it crystal clear to both the Commission and the courts, that the Commission was to consider all pertinent factors in making its calculations and determinations.
The judgment of the district court of Finney County is reversed with instructions to dismiss the petitions for review of the orders described herein.
The judgment of the district court of Stevens County is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fontron, J.:
The plaintiff, Quincy Lumber Company, Inc., has appealed from an order striking its amended bill of particulars from the files and sustaining, in part, a demurrer to its original bill of particulars.
The pertinent facts are as follows. On November 1,1961, plaintiff filed in the City Court of Pittsburg its original bill of particulars, which reads:
“Plaintiff states that defendant is indebted to the plaintiff for goods sold and delivered to the defendant, at defendant’s request, of the value and for the price of $1,082.04, the items of which, as well as the dates of when the various articles were sold and the prices charged therefor, respectively, appear on the bill of items hereto annexed, marked Exhibit ‘A’ and made a part hereof.
“A credit memoranda was given the defendant on March 80, 1956, in the sum of $500.00 and there remains due and owing on said account the sum of $582.04, with interest thereon on and after November 19, 1958, in the sum of $111.63 and that there now remains due and owing $693.67.
“Plaintiff says that the prices charged are and were at the time when said goods were sold and delivered, reasonable and proper, and the defendant agreed and promised to pay the same, but though demand has been made he has failed and refused, and still fails and refuses, to pay the same, or any part thereof.
“Wherefore, plaintiff asks judgment against the defendant for the said sum of $693.67, with interest from and after the 1st day of November, 1961, and for all costs herein.”
The dates shown on Exhibit “A” extend from 11-17-65 to 11-19-58, inclusive, with only the last date being within the statute of limitations.
From the City Court of Pittsburg, the case was appealed to the Crawford County District Court where, on December 27, 1962, an amended bill of particulars was filed alleging in substance, so far as now material, the sale to the defendant, at his request, of the items of merchandise, with their prices and dates of sale, listed on Exhibit “A”. This pleading further alleged a $500.00 credit to defendant on March 30, 1956; that $582.04 remains due, with interest after November 19, 1958, making a total of $693.67 due, with interest, for which amount judgment is prayed.
The amended bill of particulars also alleges in substance that on January 1, 1959, a written statement of the account for goods sold to the defendant, and showing the balance due thereon, was presented and delivered to the defendant who, thereafter, examined it and stated that both the account and balance were correct and that he would pay the balance.
The defendant filed a motion to strike the amended bill of particulars for the reason that it alleged a new, separate and distinct cause of action from that contained in the original hill of particulars, and also demurred to the original bill of particulars on two grounds; first, that it failed to state facts sufficient to constitute a cause of action, and second, that it showed on its face that all items of indebtedness, except those of 11-19-58, were barred by the statute of limitations.
The trial court struck the amended bill of particulars from the files and sustained the demurrer to the original bill of particulars as to all items but those of 11-19-58. From these rulings, the plaintiff has appealed.
The decisive question involved in this appeal, as urged by counsel for appellant, is whether the original bill of particulars alleges a cause of action on an account stated.
An account stated has been defined by this court on a number of occasions. In Clark v. Marbourg, 33 Kan. 471, 6 Pac. 548, it was said: “An account stated is an account which has been examined and accepted by the parties.” (p. 475)
On a later occasion, in the case of Harrison v. Henderson, 67 Kan. 202, 72 Pac. 878, the court defined the term in this fashion:
“An account stated is an agreement, express or implied, between parties who have had previous transactions with each other, fixing and determing the amounts due in respect to such transactions, and, when made, such account stated becomes a new agreement and takes the place of the obligations resting upon either party by reason of the prior account.” (p. 205)
The latest expression by this court on the subject is Bonicamp v. McNeely, 191 Kan. 225, 380 P. 2d 348, where, in commenting on the evidence, the court said:
“. . . The facts show all the essential elements of a stated account — a meeting of the minds of the parties upon the correctness of the account, and when this is shown, the law implies an agreement to pay. . . .” (p. 229)
See, also, Dolman & Son v. Construction Co., 103 Kan. 635, 176 Pac. 145; Dettmer v. Fulls, 122 Kan. 98, 251 Pac. 396.
Measured by the pronouncements of this court, does the original bill of particulars assert a cause of action for an account stated? In testing its sufficiency, we recognize the rule that its allegations shall be liberally construed and given the benefit of all reasonable inferences. (Dalton v. Hill, 169 Kan. 388, 219 P. 2d 710; Cotter v. Freeto, 166 Kan. 23, 199 P. 2d 484.) Even so, we believe the language of the original bill of particulars falls far short of averring an account stated. In Foste v. Insurance Company, 26 Ore. 449, 38 Pac. 617, quoted with approval in Doyle v. Doyle, 184 Okla. 572, 89 P. 2d 305, the court said:
“The material allegations in an action on an account stated, are: (1) That plaintiff and defendant came to an accounting together; (2) that on such accounting defendant was found indebted to the plaintiff in a specified sum, (3) which defendant promised to pay (4) and has not paid.”
From the cited authorities, it must be evident that basic to an account stated is the striking of a balance due from one party to another arising from prior transactions, and agreement as to its accuracy. When such has occurred, and not before, the law will imply an agreement on the debtor’s part to pay such balance. A new cause of action thus comes into existence, separate and distinct from that which previously existed. We believe the original bill of particulars fails to allege elements indispensable to an account stated.
We cannot agree with the appellant’s contention that an account stated is to be inferred from the following averment:
“Plaintiff says that the prices charged are and were at the time when said goods were sold and delivered, reasonable and proper, and the defendant agreed and promised to pay the same, . . .” (Emphasis supplied.)
The phrase “and the defendant agreed and promised to pay the same” clearly relates back, and refers, to “the prices charged” which the plaintiff had alleged were reasonable and proper when the goods were sold. Grammatically, we think no other construction is permissible. It may also be observed that the quoted language is that which is customarily used in alleging a cause of action on an open account, and is commonly so understood and accepted in legal parlance.
In our opinion the original bill of particulars does not allege a cause of action on an account stated. It is our further opinion that the amended bill of particulars does allege such a cause of action. It, therefore, logically follows that the second pleading does effect a material change in appellant’s claim and substitutes a new and different cause of action for the one he originally had pleaded. This constitutes a departure. (Taylor v. Hostetler, 186 Kan. 788, 352 P. 2d 1042.)
Where and amended petition or bill of particulars goes beyond the mere amplification or enlargement of an imperfectly pleaded cause of action and sets out an entirely new, different and distinct cause of action, the amendment does not relate back to the date on which the original pleading was filed, but the statute o£ limitations continues to run to the date of the amendment. (Springer v. Roberts, 151 Kan. 971, 101 P. 2d 908.)
The appellant’s amended bill of particulars, filed December 27, 1962, which alleged a new cause of action on an account stated of January 1,1959, was properly stricken. Likewise, the trial court was correct in sustaining the demurrer to the original bill of particulars, filed November 1,1961, except as to the items purchased November 19, 1958.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by the defendant in a criminal action wherein he was convicted on two counts of first degree robbery and subsequently sentenced to two consecutive forty-two year terms at the Kansas State Penitentiary.
The only question on appeal is whether the trial court erred in permitting the testimony of an officer given at a previous trial to be read in evidence.
The facts concerning the point here for review are not in dispute.
On April 16, 1962, the appellant was tried on the charges against him consisting of two counts of robbery in the first degree. After hearing the evidence the jury deliberated until April 18, 1962, when they were discharged after advising the court they were hopelessly deadlocked, and trial of the matter was reset.
During the trial of April 16th, the state called Detective Lieutenant Charles Prowse, who testified to the oral and written confessions of the appellant given during an interview with the appellant while in a jail at Kingman, Arizona. It was through this officer that certain exhibits and the written confession of the appellant were admitted in evidence.
Following the trial of April 16th a retrial was scheduled for April 23rd, after which it was rescheduled for April 30th. On April 27, 1962, the county attorney served upon counsel for the appellant a motion for a continuance or, in the alternative, a ruling by the trial court as to the admissibility of the transcript testimony of Detective Lieutenant Charles Prowse as an absent witness.
In support of the motion, which had been filed on April 27th, an affidavit was filed by the county attorney setting forth the fact that Lieutenant Prowse was absent from the state and could not be located; it further recited the fact that Lieutenant Prowse testified during the April 16th trial, and that his testimony was material to the prosecution of the case; and that Lieutenant Prowse would be in the city within a period of two or two and one-half weeks.
On April 30, 1962, at the hearing on the motion, counsel for the appellant refused to consent to a continuance or the reading of the testimony of Lieutenant Prowse given at the previous trial. The court set the trial to commence on May 2, 1962, thus permitting the county attorney to bring Alex R. Lindquist, an officer from Phoenix, Arizona, to the state of Kansas as a necessary witness. The court further ruled that it would admit the stenographic notes of the previous trial to be used as the deposition of Lieutenant Prowse in the trial of the matter.
At the trial of the matter on May 2, 1962, the reading of Lieutenant Prowse’s testimony was admitted, and at each and every opportunity counsel for the appellant raised objection, thus squarely presenting the issue on appellate review.
After the appellant’s arrest in the state of Arizona he made a written confession in his own handwriting, concerning the two offenses with which he is charged, in the presence of Officer Lindquist of the Kingman, Arizona, police department and Officer Prowse associated with the Wichita police department. Roth officers signed as witnesses to the written confession.
At the second trial of the appellant on May 2, 1962, Officer Lindquist testified as to the written confession of the appellant. The confession was admitted in evidence without objection by the appellant through Officer Lindquist’s testimony. The loaded pistol was taken from beneath the driver’s seat by Officer Lindquist from the stolen Texas automobile driven by the appellant at the time of his arrest in the state of Arizona. The appellant admitted to Officer Lindquist that he used the loaded pistol in the robberies in Wichita. Roth the loaded pistol and evidence concerning the appellant’s admission with respect thereto were admitted in evidence without objection by the appellant.
The victims in the two liquor store robberies in the city of Wichita with which the appellant is charged appeared in person at the trial to testify, and, in the course of their testimony, identified the appellant as the person who robbed them.
It may therefore be said the county attorney had fully established a prima facie case on behalf of the state without the written statement of Officer Prowse.
The question remains whether it was error for the trial court to admit the written testimony of Officer Prowse given at the previous trial.
Preliminary to a discussion of the issue presented, it may be said G. S. 1949, 60-2934, made applicable to criminal cases by G. S. 1949, 62-1414, was used by the county attorney in an effort to procure a continuance of the case. He fully complied with its provisions, but the trial court refused to grant a continuance, and the appellant refused to consent that on the trial the facts alleged in the affidavit could be read and treated as the deposition of the absent witness. Under these circumstances further consideration of the statute is immaterial to the issue presented.
The appellant contends he was denied his constitutional right to be confronted by the witness against him face to face.
Article 10 of the Rill of Rights of the Kansas Constitution provides: "In all prosecutions, the accused shall be allowed to . . . meet the witness face to face, . . .”
This point has been before the court on numerous occasions. The question has arisen in many cases where the transcript of a preliminary hearing has been read and introduced at the time of trial.
The following was said in State v. Bonskowski, 180 Kan. 726, 308 P. 2d 168:
“In the argument respecting the claim now under consideration no attempt is made to avoid or challenge the long established rules of this jurisdiction (1) that when the State has made every reasonable effort to procure the attendance of a witness, and is unable to do so, the testimony of such witness, given at the preliminary examination, may be introduced at the trial (The State v. Chadwell, 94 Kan. 302, 146 Pac. 420.); (2) that the requirements of Section 10 of the Bill of Rights of the Constitution of this State, providing that the accused shall be allowed to meet the witness face to face, have been complied with where a defendant has met the absent witness face to face at his preliminary hearing (The State v. Harmon, 70 Kan. 476, 78 Pac. 805.); or (3) that when the trial court is satisfied from the evidence adduced by the State that it has made every reasonable effort to procure the attendance of a witness and is unable to do so, it is not error for the court to admit on the trial of the action the testimony of a witness given at a preliminary examination (State v. Streeter, 173 Kan. 240, 241, 245 P. 2d 1177). . . .” (p. 728.)
If the testimony of an absent witness given at a preliminary hearing may be introduced at the trial, a fortiori, the testimony of an absent witness given at a previous trial of the accused which resulted in a hung jury may be introduced at the trial, provided a proper foundation is established for its admission. Here the appellant, through counsel, had full opportunity to cross examine Officer Prowse at the previous trial where his testimony was recorded.
The limitation upon the right of the state to use the testimony of an absent witness given at a former trial is dependent upon the foundation laid for the admission of such testimony. Thus, in State v. Brown, 181 Kan. 375, 312 P. 2d 832, where the court was faced with the question of an absent witness, it was said:
“In the instant case it cannot be denied that the witness, Mrs. Ruth M. Brakey, was under oath or that the defendant had a right to cross-examine the witness at the preliminary hearing. What is of greater concern, however, is whether or not the testimony of the witness was available. This is dependent upon the foundation laid for the admission of such testimony at the trial of the defendant.
“It must be made to appear that the witness who gave such testimony at the former hearing cannot by the exercise of reasonable diligence be produced. . . .” (p. 391.)
The interpretation given the question before the court, both with respect to Section 10 of the Bill of Rights and 60-2934, supra, is well summed up in State v. Tyler, 187 Kan. 58, 353 P. 2d 801, where State v. McClellan, 79 Kan. 11, 98 Pac. 209, Syl. ¶ 1, is quoted as follows:
“Before the testimony of a witness given at a former trial can be read in evidence by the state against a defendant in a criminal prosecution, over his objection, it must be made to appear that the witness who gave such testimony can not, by the exercise of reasonable diligence be produced.” (p. 59.)
The query, therefore, is whether the state in the instant case has established a proper foundation for the admission of the transcript testimony of Officer Prowse. Cases in which the diligence rule has been applied to determine whether a proper foundation was laid by the state showing that the witness was unavailable are State v. Hoggard, 146 Kan. 1, 68 P. 2d 1092; and State v. Eason, 163 Kan. 763, 186 P. 2d 269.
In the instant case the only foundation laid by the state was in its motion served on defense counsel on the 27th day of April, 1962, fortified by an affidavit. This was ten days after the trial court had reset the trial date following dismissal of the jury which could not agree at the previous trial. The affidavit stated Officer Prowse was absent from the state and could not be located. Statements in argument to the court by the county attorney disclosed Officer Prowse was either in the state of California or Nevada, but that his exact location was unknown.
It is the appellant’s contention that Officer Prowse was present when the case was reset for trial; that at the time in question Officer Prowse was a liaison officer between the Wichita police department and the county attorney’s office, having an office in the Sedgwick County courthouse in quarters supplied by the county attorney, and whose responsibility it was to make certain witnesses were subpoenaed and present in all cases involving investigations conducted by the Wichita police department.
Counsel for the appellant, in making objection to the admission of written testimony of Officer Prowse, stated that after malting two telephone calls during the noon recess he had been advised at each office location for Officer Prowse that he was on vacation.
The appellant sums up his argument by stating that the state, by its action in permitting one of its own liaison agents to go on vacation prior to the trial date, when it was known in advance that his testimony was most important, and the trial was less than a week away, cannot now claim that it practiced due diligence in seeming the missing witness’ attendance at the trial, or escaped this responsibility by following 60-2934, supra, in a criminal case.
The trial court concluded the county attorney had made a proper case for the admission of the written testimony of Officer Prowse at the hearing on tire motion prior to trial, because it was established the officer was not within the jurisdiction and could not be located for the purpose of procuring his attendance at the trial. This is fortified by the statement of counsel for the appellant at the trial, which must be construed as an admission by the appellant, that Officer Prowse was on vacation.
In State v. Nelson, 68 Kan. 566, 75 Pac. 505, Syllabus ¶ 1 reads:
“The fact that a witness against the defendant in a criminal case is outside of the state at the time of the trial, and therefore beyond the reach of process, authorizes the introduction in evidence of the testimony given by the witness at a former trial of the same case, notwithstanding an opportunity to subpoena the witness may have been neglected by the prosecution. The requirement of the bill of rights that the accused shall be allowed to meet the witness face to face is complied with in that he has already at the former trial been confronted by the absent witness, and at the later trial meets the witness who gives evidence of what such former testimony was.”
Upon all of the facts and circumstances presented to this court by the record on appellate review, it is held the trial court did not err in permitting the testimony of Officer Prowse given at the previous trial to be read in evidence.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment denying specific performance of an alleged oral contract to bequeath and devise a substantial portion of a decedent’s estate to the claimant for services and companionship during the decedent’s life.
The action was commenced in the probate court with the filing of a petition in the estate of Ida Pearl Winters, deceased. The matter was then certified to the district court for trial. It was stipulated before trial that as an alternative to the relief prayed for in the petition, the court might grant relief on the basis of quantum meruit if the evidence so justified.
It is conceded by all parties that factual issues only are presented. The testimony was quite voluminous. The facts can best be presented by paraphrasing the findings of the trial court.
Mrs. Ida Pearl Winters, the decedent, was a gregarious person, fond of children, playing cards, visiting with her friends and traveling. She loved the companionship of friends and relatives. When trips were made she usually paid for all the transportation, room and meals, although occasionally others with her paid some of their own expenses. She was also a demanding person, requesting a great deal of personal attention from her employees, friends and relatives. She was usually very close mouthed about her business affairs and her estate, but had expansive moods when she would make spur of the moment declarations concerning what she intended to do with certain items of her property or other expressions of intent with regard to her estate. She told several relatives and friends, including claimant, that they were to receive certain things or were to be remembered in the disposition of her estate.
Mrs. Ota Robie, the claimant, took several trips with Mrs. Winters as did various other people. On these trips Mrs. Winters paid all or most of the expenses including the claimant’s. On a few occasions the claimant paid her travel expense one way when visiting Mrs. Winters at Lyons, Kansas. The claimant called Mrs. Winters occasionally and exchanged occasional visits with her. During the period following Mr. Winters’ death, there would be periods of from four to five months when the claimant would not visit Mrs. Winters. During the period between the deaths of Mr. Winters and Mrs. Winters, many others came to visit Mrs. Winters. During this same period Mrs. Winters took many trips and visited many friends and relatives.
Walter "Peck” Sauers, a longtime employee, waited on Mrs. Winters, taking care of her every need, in sickness as well as health, and was as devoted to her as was humanly possible for one person to be. His relation to her was the same as that of a mother and son. He ran the station, cooked most of the meals, looked after the cabin camp, dressed Mrs. Winters’ foot, gave her medicine, drove her on trips, lived in the same house with her and did all things required by her.
The claimant had six small children which required her attention and limited the time she could spend with Mrs. Winters. She told those staying nights with Mrs. Winters at the hospital that she could not do so because she had a family which required her attention.
Mrs. Winters executed a will in longhand which has been admitted to probate in Rice County, Kansas. The will was executed and signed approximately three or four months after the alleged oral contract. In the will Mrs. Winters mentions only Walter Sauers and Chester Imel.
Mrs. Robie claimed to represent her mother at the time the personal effects of Mrs. Winters were being divided. She later informed her mother that she made the claim for the bulk of the estate for the benefit of her mother as well as herself. She made a search of the records at the hospitals after Mrs. Winters’ death telling one hospital administrator that she intended to make a claim for her services since there wasn’t any will and she deserved something.
On one or more occasion, claimant was heard to express herself as determined to get a share of the Winters’ estate. It was not until after claimant discovered that there was no will covering the bulk of the estate that she determined to put in a claim for it.
The value of the estate was appraised at $165,898.66. The appraised value of the share willed to Walter Sauers and Chester Imel was $19,500.00 plus inventory of the stock in trade at the filling station valued at $2,000.00. The claimant states that she believes this should go to Sauers and Imel and is not claiming it. This leaves the appraised value of the interest sought by claimant at $144,398.66.
The trial court concluded:
“1. That the claimant, Ota Robie, is not entitled to specific performance of an alleged oral contract with the decedent, Mrs. Ida Pearl Winters, for the following reasons:
“A. There was not convincing evidence that a contract was in fact made.
“B. That except for the testimony of claimant and her husband, the testimony of the witnesses who heard the deceased malee references to her intent and purpose were testifying to casual statements inconclusive in their nature, permitting an inference either way and quite possibly misunderstood. Such statements are insufficient in themselves to establish a making of a contract and amount only to statements of future intent or desire. That the testimony of claimant and her husband must, in a case of this nature, be carefully weighed in consideration of their natural interests. That the claimant’s testimony must be considered in the light of her inconsistent actions from the time of the first hospitalization in Kansas City through to the filing of her claim herein. That the testimony of claimant’s husband must be considered in the light of the bargaining threats made to witness Sauers.
“C. The facts and circumstances relied upon by the claimant consisted of certain trips by claimant, phone calls, and visits, and the repetition of oral statements or fragmentary parts thereof made by the deceased. This evidence was not sufficient to raise a convincing implication that a contract was made. Most of the evidence of claimant was vague and uncertain, so that it could not be said with any degree of certainty whatsoever that the decedent was referring to a contract rather than a mere statement of future intent or desire. Statements made by the decedent to Mrs. Furbeck, Mrs. Toombs, and Mrs. Looney shortly before her death definitely show the decedent did not feel she had any contract with the claimant.
“D. That the claimant made statements before and after the death of Ida Pearl Winters inconsistent with the existence of an alleged contract to devise property in consideration for services.
“E. Even if tire Court were to consider that there was sufficient evidence of a contract and its terms thereof, the alleged contract herein would have been grossly inequitable and unjust. Equity will not decree specific performance of a contract when the inequality of consideration, as in this case, is so great as to shock the conscience of the Court.
“F. In order to obtain specific performance, there must also be established a consideration of such an exceptional character or such peculiar value to the promisee that the value thereof is not subject to pecuniary estimate. In this case, the Court finds that even if the contracts [contacts] the claimant had with the decedent over the years were found to be in the nature of services to decedent rather than for the temporary mutual enjoyment of both parties, then and in that event the value thereof would be subject to ascertainment and recovery in quantum meruit.
“2. That the contacts between claimant and decedent were in the nature of mutual personal enjoyment rather than services by one to the other and hence, recovery on the basis of quantum meruit is denied.”
The appellant contends that “the trial court either decided the case on an incorrect conception of the law or acted arbitrarily in disregarding adequate competent uncontradicted evidence.”
At the outset we are confronted with a well established rule of law governing the review of factual issues presented on appeal. This court may set aside an affirmative finding where the record shows there was no evidence to support it. However, a negative finding is seldom set aside if the evidence is limited in quantity and its weight and credibility may be questionable, or if the evidence may be disregarded for any reason.
The court had the question under consideration in the case of In re Estate of Johnson, 155 Kan. 437, 125 P. 2d 352, covering facts quite similar to the present case and stated:
“Plaintiff contends this court has frequently reversed a trial court on findings of fact where there was no evidence to support the findings made. That is true where there were affirmative findings of fact unsupported by the record. Here, however, we have a negative finding of fact — a very different thing. (Potts v. McDonald, supra [146 Kan. 366, 69 P. 2d 685] p. 369.) Here the court, after hearing all of the evidence, was convinced the claim should not be allowed, and SO' found. The court quite apparently either did not believe tire testimony offered in support of plaintiff’s claim or tire evidence was not sufficiently clear and convincing to persuade the court concerning the validity of the claim.
“Appellate courts cannot nullify a trial court’s disbelief of evidence (Kallail v. Solomon, 146 Kan. 599, 602, 72 P. 2d 966), nor can they determine the persuasiveness of testimony which a trial court may have believed. The appearance and demeanor of a witness, which appellate courts never have the opportunity of observing and which cannot be transmitted to the cold records of this court, may be, and sometimes are, far more persuasive than positive testimony.” (p. 439.)
We have carefully reviewed the record and must conclude that the evidence presented falls well within the rule above announced.
The appellant relies on the case of In re Estate of Wert, 165 Kan. 49, 193 P. 2d 253, where it was held:
“The record examined in consolidated cases asserting an oral contract with deceased persons wherein a widow of a son of the deceased parties alleged that they agreed to leave her the son’s share of their estate in the event of his death if she would remain a widow as long as they lived and render certain services to them, and held: (1) The trial court either decided the cases upon an incorrect conception of the law or acted arbitrarily in disregarding adequate competent, uncontradicted evidence; (2) this court is unable to order judgment for an appellant in the absence of findings upon related and essential mixed questions of fact and law which are not determined by the trial court on conflicting evidence; (S) in the above circumstances, the appellant is entitled to new trials.” (Syl. 1.)
In an opinion on rehearing, In re Estate of Wert, 166 Kan. 159, 199 P. 2d 793, it was again stated in the syllabus:
“Upon a reexamination of the testimony in these cases, it is held: (a) That there is no substantial conflict in the evidence concerning the existence of an oral contract to leave the widow of decedents’ son, at the death of the deceased son’s surviving parent, one-half of the joint estate of such parents provided such widow did not remarry during the lifetime of the parents; (.b) that performance of the conditions of the oral agreement was established by the evidence.
“Where the existence of an oral contract, its terms, and performance thereof have been fully established and there is no substantial conflict in the evidence, this court may reverse the judgments below and direct entry of judgments establishing such contract and its performance.”
It will be noted that in the Wert case there was no substantial conflict in the evidence. The evidence pointed to but one conclusion, the existence of the oral contract. There was no substantial evidence introduced which in any way contradicted the testimony of the claimant’s corroborating witnesses.
Without making an extended review of the evidence in the present controversy, it may be said that the record amply supports the trial court’s conclusion that the testimony of the many witnesses, other than that of the appellant and her husband, as to the intent and purpose of Mrs. Winters was as to casual statements inconclusive in their nature. The conduct and statements of the appellant were inconsistent with the existence of lite alleged contract.
The husband of the appellant was the only witness that testified as to a definite contractual arrangement. The court had a right to consider the husband’s natural interest in the controversy, and certainly must have been influenced by the bargaining threats which he made to the faithful employee, Sauers, to the effect that if Sauers did not support appellant’s contention they would also claim that which was devised to him by the handwritten will.
Appellate courts cannot nullify a trial court’s disbelief of evidence, nor can they determine the persuasiveness of testimony which a trial court may have believed.
The rule covering the factual question now before us was well stated in the case of In re Estate of Guest, 182 Kan. 760, 324 P. 2d 184, at page 766 of the opinion:
“. . . Time after time, in fact, every month, this court is called upon to repeat the familiar rule of appellate review to the effect that where findings are attacked for insufficiency of the evidence this court’s power begins and ends with a determination as to whether there is any competent sub stantial evidence to support them; that it has no power to judge the value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom, and that even though there is evidence to support a contrary finding, nevertheless, a finding based on competent substantial evidence will not be disturbed on appeal. For a thorough discussion of this proposition we call attention to what was said in Bruington v. Wagoner, 100 Kan. 439, 164 Pac. 1057.”
Appellant contends that “if the right to specific performance was not convincingly proven, the trial court clearly erred in refusing a recovery on the basis of quantum meruit.”
What has already been said disposes of this contention. The record is void of evidence to establish any specific services or the value of any services rendered by the appellant to Mrs. Winters.
The trial court concluded: “That the contacts between claimant and decedent were in the nature of mutual personal enjoyment rather than services by one to the other and hence, recovery on the basis of quantum meruit is denied.”
The evidence tends to support the conclusion. '
The testimony as to the rather short and infrequent visits which the appellant had with Mrs. Winters did not indicate services for which payment would be expected. The evidence clearly establishes that the appellant was hampered in being with Mrs. Winters because she had six small children requiring her care and attention.
The appellant calls our attention to McEnulty v. McEnulty, 146 Kan. 198, 69 P. 2d 1105 where the court denied specific performance for the reason that the contract was not sufficiently established and then proceeded to make an equitable award to the claimant to compensate him for his services.
Our attention is also called to the following statement in 57 Am. Jur., Wills, § 179: “. . . If services are rendered to a person at his request, made under such circumstances that a promise to compensate therefor may be implied, he is liable therefor, even though they were rendered in expectation of a legacy. . . .” (p. 158.)
We have no quarrel with the authorities cited by appellant. However, they do not meet the problem which confronts the appellant in this controversy. Appellant’s difficulty is the lack of evidence to establish that any specific services were rendered for which compensation could be or should be expected.
What has been said renders unnecessary a consideration of the question of the sufficiency of the evidence to establish an agreement or understanding to overcome the presumption that services rendered between parties in a family relationship are gratuitous.
The judgment is affirmed.
approved by the court
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Wertz, J.:
Plaintiff (appellant) Arlen D. Frank brought this action for damages for personal injuries alleged to have been sustained as the result of negligent acts of Richard Lee Knuckey, defendant (appellee), while driving an automobile.
In his petition plaintiff alleged that at the time he was struck by defendant’s automobile he was engaged as a workman on the repair of the street and crossing the street in furtherance of his work. Warning signs had been posted to advise oncoming travelers. Defendant answered denying plaintiff’s allegations and further alleged in detail the negligence of the plaintiff which caused or contributed to his accident.
The case was tried to a jury which, in answer to special questions submitted to it by the court, found both plaintiff and defendant guilty of negligence and returned its general verdict in favor of the defendant.
From an order overruling plaintiff’s motion for a new trial, he appeals.
The sole question presented by plaintiff is that the court erred in refusing one of his requested instructions and in giving instruction No. 13 to the jury. The pertinent portion of plaintiff’s requested instruction provided:
“. . . that if you find from the evidence that at the time and place of the occurrences in question plaintiff was a workman engaged in working upon said highway, then I instruct you no duty was imposed upon him to be constantly on the lookout for motor vehicles; on the contrary, it is the duty of drivers of motor vehicles to observe workmen upon the highways, and to avoid contact with them. It is not negligence as a matter of law for a workman to keep his mind on his work or to fail to look and listen for approaching vehicles. . . .”
It is the contention of plaintiff that the trial court erred in not making a distinction in the degree of care and duty owed by a workman while engaged in his work on a street construction project while crossing the street or highway and the duty owed by an ordinary pedestrian normally crossing the street, and in instructing the jury (instruction No. 13) that when a workman on a street or highway is merely in the act of crossing the street he may be considered as having the status of a pedestrian with respect to the rights given and duties imposed by traffic rules and regulations.
The court, in refusing plaintiffs requested instruction and in giv ing instruction No. 13 over the objection of the plaintiff, stated, “If the evidence warranted, I think the request would be warranted, but I don’t think the evidence in this case would warrant the instruction, and this request is refused.”
Apparently the trial court refused plaintiffs requested instruction on the ground the evidence did not warrant a finding that plaintiff was a workman engaged in his duties as such at the time he was crossing the street, and the record presented to us on appeal fails to disclose any evidence that the plaintiff was at the time of crossing the street engaged as a workman in furtherance of his duties.
Plaintiffs real difficulty is that the record brought to us is insufficient for us to determine whether the instruction was erroneous as a matter of law, or, absent the evidence, whether the alleged error in the instruction was detrimental to the plaintiff; nor is this court, from the record, in a position to determine that the instruction, although it may have been incorrect in some particular, was prejudicial error, as only prejudicial error is ground for a reversal. This case is controlled by the rules of law applied in Leclercq v. Heimerman, 169 Kan. 149, 150, 218 P. 2d 243; Darst v. Swazee, 135 Kan. 458, 11 P. 2d 977; and Balmer v. Long, 109 Kan. 42, 197 Pac. 1089.
From the record before us we cannot say the court erred in refusing the plaintiff’s requested instruction or that the instruction given was erroneous as a matter of law in the instant case. In view of what has been said, the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
The nature, facts and history of this action are set forth in our earlier opinions of January 31, 1963 (Harris v. Shanahan, 191 Kan. 1, 378 P. 2d 157), and December 5, 1963 (Harris v. Shanahan, 192 Kan. 183, 387 P. 2d 771), the latter having declared both the 1963 apportionment of the Senate, enacted by Senate Bill 440 (Laws 1963, Ch. 13), and the 1961 apportionment of the House of Representatives (G. S. 1961 Supp., 4-103) to be unconstitutional and void. Having thus ruled, we said:
“It is a matter of public knowledge that the legislature will convene in budget session on the second Tuesday in January, 1964, for 30 days and then adjourn. (Art. 2, Sec. 25.) This court feels certain that the governor will invoke constitutional processes and call the legislature into special session which will then be assembled at the state capitol, and that the legislature will enact valid apportionment acts apportioning the state into legislative districts pursuant to Article 2, Section 2, and Article 10, Sections 1 and 2 of our Constitution. Accordingly, if reapportionment of the state is accomplished in full compliance with the constitutional mandate, it may not be set aside by this court during its constitutional life and would not be subject to alteration until the next constitutionally established reapportionment period. Consequently, it would follow that judicial action would cease and the judgment of the court below pertaining to equitable relief as well as the manner of holding future elections as therein directed would die of its own terms.
“For reasons stated, we withhold further determination of the appeal, except, of course, our jurisdiction to hear the matter further. This will afford the governor an opportunity to call the legislature into special session, and for it to consider the adoption of apportionment acts based upon the 1963 state census in accordance with Article 10, Sections 1 and 2. In the meantime the record will be held for the purpose of such further action as is deemed advisable and within such reasonable time as the circumstances may demand.” (l. c. 215.)
Thereafter, and on February 10, 1964, the governor issued his proclamation calling the legislature into special session on February 17, 1964, to enact such apportionment statutes as would comply with the constitutional mandate pertaining thereto. On the date appointed, the legislature duly convened in special session and sub sequently and on February 21, 1964, enacted Senate Bill No. 2, which apportioned the state into 40 senatorial districts, and House Bill No. 2, which apportioned the state into 125 representative districts. Those bills were duly signed by the governor on February 24,1964, and thereafter published in the official state paper, thereby making the acts effective.
On February 28,1964, counsel for both parties filed a joint motion requesting this court to consider the 1964 apportionment acts and judicially approve those measures as being in compliance with Article 2, Section 2, and Article 10, Sections 1 and 2 of the Consitution of Kansas; to affirm the judgment of the court below, and to declare that the equitable relief granted therein, as well as the manner of holding future elections, had died of its own terms. Attached to the joint motion were copies of both apportionment acts and maps of the state containing population statistics based on the 1963 state census and showing the respective senatorial districts and districts of the House of Representatives created thereby and the population of all such districts, as well as each district number. The joint motion alleged that, among other things, Senate Bill No. 2 repealed G. S. 1949, 4-102, and Chapter 13, Laws of 1963, and that House Bill No. 2 repealed G. S. 1961 Supp., 4-103.
Subsequently, and on March 4,1964, counsel filed a supplemental joint motion asking this court to take judicial notice of and consider documents of the Legislative Council Research Department attached thereto which showed, among other things, the area and population statistics of the five representative districts apportioned to Johnson County by House Bill No. 2 and the population of each ward and precinct of the incorporated cities of Johnson County, based on the 1963 census which was used by that department and the House Committee on Legislative Apportionment in determining the apportionment of those five representative districts, and upon which population statistics and ward and precinct areas the five representative districts were finally determined and established.
Upon the filing of the joint motion, this court ordered counsel to file briefs and present oral argument thereon. The motion was heai'd on its merits on March 6, 1964, and we shall consider each act to determine its validity.
The joint motion alleged, “That in the opinion of the movants, Senate Bill No. 2 operates to apportion the Kansas Senate in accordance, with the requirements of the Kansas-Constitution.” It may be said that the apportionment of senatorial districts by Senate Bill No. 2 is essentially the same as that attempted by the void 1963 act (Laws 1963, Ch. 13), with minor adjustments made for subsequent population changes revealed by the 1963 state census. Based upon the 1963 state census population of 2,172,296, an average-sized senatorial district should now contain 54,307 people. As shown by the map of Kansas attached to the joint motion and the geographical boundaries and population statistics for each senatorial district shown thereon, Senate Bill No. 2 apportioned the state into 40 districts of approximately equal population, none of which varied more than approximately 14 percent from tibe average population figure of 54,307. The smallest district created by the new act contains 47,114 persons, while the largest has 61,920, and all but nine districts vary less than 10 percent above or below the average district figure. Because of the 1963 urban and rural population patterns within the larger populated counties, it is difficult for the legislature to establish senatorial districts which more nearly approximate the ideal or average district figure than that contained in the new act. As we previously stated, in the apportionment of the state into senatorial districts, the legislature is not confined to county boundary lines, but the resulting districts should, where possible, be compact and contain a population and area as similar as may be in its economic, political, and cultural interests, all as determined by the legislature in its discretion, not acting arbitrarily or capriciously. (Harris v. Shanahan, 192 Kan. 183, 205, 387 P. 2d 771.) Accordingly, we hold that Senate Bill No. 2 of the 1964 special session represents a valid exercise of legislative power, and find that the act and the apportionment of senatorial districts therein contained constitute as close an approximation to exactness as possible as required by Article 10, Section 2 of the Kansas Constitution, and that the apportionment accomplished thereby is valid and constitutional.
With respect to House Bill No. 2, the joint motion alleged, “That in the opinion of the movants, the apportionment plan contained in House Bill No. 2 is in compliance with the Kansas Constitution.” As determined in Harris v. Shanahan, 192 Kan. 183, 204, 205, 209, 212, 213, Syl. ¶ 14, 387 P. 2d 771, it was recognized by those who framed the Constitution that the districts of the House of Representatives were to be apportioned to the several counties, that is, each organized county was to have at least one representative and seats not allocated on a geographical basis were to be apportioned to counties properly entitled to them by virtue of population, and each county entitled to more than one such seat was to be divided into as many districts equal or substantially equal in population as it had representatives. In no case was a representative district to include territory in more than one county.
G. S. 1949, 4-101 fixes the size of the House of Representatives at 125 members. The act in question apportions one member to each of the 105 organized counties, and then apportions the 20 “extra” seats among the five most populous counties according to the method of equal proportions as recommended by this court in its opinion filed December 5, 1963. (Harris v. Shanahan, supra.) in accordance with that method, Sedgwick County was apportioned eight of the 20 “extra” seats, Wyandotte County: four; Johnson County: four; Shawnee County: three; and Reno County: one. Thus, file apportionment of the 20 “extra” seats together with the one apportioned to each of such counties on a geographical basis, gave a total number of representatives to the five most populous counties as follows: Sedgwick: nine; Wyandotte: five; Johnson: five; Shawnee: four; and Reno: two. As shown by the map of the state and the population statistics for each representative district apportioned pursuant to the method of equal proportions, the five multidistrict counties were divided into as many districts equal or substantially equal in population as the county was apportioned representatives, and in no case did any such representative district vary as much as 10 percent above or below the ideal or average district population for any such county. House Bill No. 2 of the 1964 special session is in full conformity with Article 2, Section 2, and Article 10, Sections 1 and 2 of the Kansas Constitution, and, indeed, it is a diligent and good faith effort by the legislature to achieve the standard of equality of representation demanded by the Constitution of Kansas, and we have no hesitancy in holding, subject to points hereafter discussed, that the act represents full compliance with the mandate of our Constitution with respect to apportionment of representative districts.
An examination of House Bill No. 2 reveals there is an irreconcilable conflict in the terms of the act in that it provides “. . . all of wards 1 and 2 ... of the city of Prairie Village . . . shall constitute the eleventh representative district,” and that “Precinct 4 of ward 2 ... of the city of Prairie Village . . . shall constitute the thirteenth representative district.” Thus the act purports to place precinct 4 of ward 2 of the city of Prairie Village in both the 11th and the 13th representative districts.
When the governor signed House Bill No. 2 on February 24, 1964, he noticed this obvious conflict on the face of the bill, and in a written message he stated:
“I have signed House Bill No. 2 as passed by the Legislature and in conformity with the requirements of Article 2, Section 14 of the constitution.
“This statement is attached to the bill prior to its enrollment and engrossment and prior to expiration of three days from its delivery for signature and prior to publication. It is attached for the purpose of explaining the intent attendant approval of the bill by the Governor.
“An examination of the bill shows a discrepancy. Precinct 4 of Ward 2 in the City of Prairie Village is included in both the eleventh and thirteenth representative districts.
“A review of the records of the Legislative Research Department shows an obvious intention on the part of the Legislature that Precinct 4 of Ward 2 of the City of Prairie Village be included in representative district thirteen and that the specific reference was dominant over the general reference by the entire ward description. This intent is supported by the map, the nature of the boundaries and location of the precinct; and more specifically by the breakdown on the population figures of the entire ward as divided between the two representative districts, and the final figures on the districts in the county.
“Based upon the information in the Legislative Research Department, it is clear that the Legislature intended Precinct 4 of Ward 2 in Prairie Village to be included in the thirteenth representative district. It is with this interpretation of House Bill No. 2 that approval of the bill is given and this message attached.”
Can this court construe House Bill No. 2 to determine in which representative district the legislature intended to place precinct 4 of ward 2? In approaching this question, we point out the basic distinction between the question here presented and that decided in our opinion filed December 5,1963, in which Senate Bill 440 was held to be unconstitutional. There, the legislature passed one bill and another bill was presented to and signed by the governor, and it was held that this court could not reach out and draw from the legislative records the omitted portion and place it into the law. There, we were dealing with an act which was unconstitutional and therefore not susceptible to construction. Here, we are dealing with a constitutional act — all steps leading up to its enactment were in conformity with the prerequisites of Article 2, Section 14 of our Constitution — which contains an obvious conflict by purporting to place a certain electoral district in two representative districts.
Neither the concept of equal protection as embodied in Section 2 of the Bill of Rights of the Constitution of Kansas nor the equal representation contemplated in Article 10 can be satisfied in one group of people is permitted to have a voice in selecting two representatives while every other person in the state is allowed a voice in selecting only one representative. An elector is not entitled to vote for more than one representative and an act which purports to give him such a right would offend fundamental concepts inherent in our republican form of government and would deny the equal protection and benefit to the people which our Constitution was adopted to insure. To permit the electors in precinct 4 of ward 2 to vote for two representatives would make the act as written violate Section 2 of the Bill of Rights, and we import no such abortive intention to the legislature.
The apparent conflict appearing on the face of House Bill No. 2 may be resolved by this court through the exercise of its power of statutory construction. It is the court’s duty to uphold legislation rather than defeat it. It is presumed that the legislature intended to pass a valid law. If there is any reasonable way to construe legislation as constitutionally valid it should be so construed. (Parker v. Continental Casualty Co., 191 Kan. 674, 383 P. 2d 937, and cases cited.)
, In construing a statute the legislative intention is to be determined from a general consideration of the whole act. Effect must be given, if possible, to the entire statute and every part thereof. To this end it is the duty of the court, so far as practicable, to reconcile the different provisions so as to make them consistent, harmonious and sensible. (State, ex rel., v. Moore, 154 Kan. 193, 197, 117 P. 2d 598; In re Estate of Diebolt, 187 Kan. 2, 353 P. 2d 803.)
The situation involving the apparent double inclusion of precinct 4 of ward 2 is analogous to the situation in Felten Truck Line v. State Board of Tax Appeals, 183 Kan. 287, 327 P. 2d 836. That case involved the construction of two paragraphs of G. S. 1955 Supp., 79-6a04. The first paragraph provided that the property tax assessed on a motor carrier should be paid at the same time required for the payment of general taxes. The second paragraph provided a penalty if the entire tax had not been paid prior to the 20th of December in the year in which it was levied, a different provision than for any other group of taxpayers. In construing tihe second paragraph to the effect that only one-half of the tax need be paid prior to December 20, it was said:
“If possible, the court will construe a statute to prevent discrimination and unequal protection of the laws. This court will always approach questions challenging the constitutionality of a statute with a disposition to determine them in such a manner as to sustain the validity of the enactment in question. (Berentz v. Comm’rs of Coffeyville, 159 Kan. 58, 152 P. 2d 53.) The construction supporting a statute is preferred to one destroying it. (Kaw Valley Drainage Dist. v. Zimmer, 141 Kan. 620, 42 P. 2d 936.) Where possible, the provisions of an act must be considered together to resolve consistency rather than inconsistency, and a construction upholding the provision of the statute is favored. (Terrill v. Hoyt, 149 Kan. 51, 87 P. 2d 238. )...”(l. c. 294.)
In Hunziker v. School District, 153 Kan. 102, 109 P. 2d 115, the rule is stated:
“It is a fundamental rule of statutory construction, to which all others are subordinate, that the purpose or intent of the legislature governs when that intent can be ascertained from the statute, even though words, phrases or clauses at some place in the statute must be omitted or inserted. This rule, stated in various forms, has been applied by this court throughout its history. . . .” (l. c. 107.)
The language with respect to precinct 4 of ward 2 relating to district 13 must be given effect. That language is in fact an exception to the language “all of wards 1 and 2” in that portion of the act relating to district 11. While there is no specific language establishing district 11, which, when read alone, would indicate that precinct 4 is not included in the terms “all of ward 2,” the exception becomes apparent when the language of the bill relating to districts 11 and 13 are read together. Generally speaking, words expressive of a particular intent, incompatible with other words expressive of a general intent, will be construed to make an exception, so that all parts of the act may have effect. The context may thus serve to ingraft an exception by implication, to dispose of an apparent conflict. The applicable rule is stated in Iola B. & L. Ass’n v. Allen County Comm’rs, 152 Kan. 365, 103 P. 2d 788, as follows: “. . . When the clauses and paragraphs read seriatim involve repugnancies, but, read as mutually modifying one another, permit a construction as a consistent whole, the latter construction must be adopted. . . .” (l. c. 370, 371.)
As previously indicated, that part of the act establishing district 11 deals generally with “all of ward 2,” while that part of the act establishing district 13 deals specifically with precinct 4 of ward 2. General language of a statutory provision, although broad enough to include it, will not be held to apply to a matter specifically dealt with in another part of the same enactment. Specific reference or specific language takes precedence over language which more generally deals with the particular subject in the same or other statute which otherwise might be controlling. In State, ex rel. v. Throckmorton, 169 Kan. 481, 219 P. 2d 413, it was held:
“In construing statutes and reconciling conflicts, courts must ascertain the intention of the legislature from the subject matter of the statutes, and may take into consideration consequences of their enactment in case of conflict.
“Where one section of a statute treats specially and solely of a matter, that section will prevail over other sections which deal only incidentally with the same question.” (Syl. ¶| 1, 2.)
The rule is stated in 82 C. J. S., Statutes, § 347b, p. 720, that unless a legislative intention to the contrary clearly appears, special or particular provisions control over general provisions, terms or expressions.
Applying the foregoing rule of statutory construction, the particular reference to “precinct 4 of ward 2” would take precedence over the language referring to “all of ward 2” which, standing alone, would include precinct 4 along with precincts 1, 2 and 3 of that ward. Thus, application of the foregoing rule would place precinct 4 of ward 2 in the 13th district while the other three precincts of that ward are placed in the 11th district.
The intention of the legislature to place precinct 4 of ward 2 in district 13 is supported by an examination of the population statistics used by the legislature in defining proposed districts of Johnson County prior to the drafting of House Rill No. 2.
In 1933 the legislature created the legislative council to deal with questions of state-wide interest and to prepare a legislative program in the form of bills for the consideration of the legislature. To assist it in carrying out its duties, the council established its own research department. (G. S. 1949, 46-308.) The research department of the council is an arm of the legislature itself. In assisting in the legislative work, the research department is akin to the function of a legislative or a code revision commission, reports of which may be considered in construing a statute. (State, ex rel., v. Davis, Governor, 116 Kan. 663, 229 Pac. 757; 82 C. J. S., Statutes, § 356, p. 757.)
In the preparation of House Rill No. 2, the research department drew a number of proposed legislative districts within the multidistrict counties at the direction of the house committee on legislative apportionment. The general scheme was to keep each district within the county as near an average as practicable and to keep the population of all districts in a given county within approximately 10 percent above or below the average district population for that county. With respect to Johnson County, tire research department and the house committee had before them the population statistics of each ward and precinct of the incorporated cities of that county. Working from the population data sheet and at the direction of the house committee, the research department prepared a pencil work sheet which indicated the assignment by area and population of the five representative districts to be apportioned to that county in accordance with the method of equal proportions. That work sheet was presented to the house committee, and it reflected that the total population assigned to district 11 was 33,192 and the total population assigned to district 13 was 32,109. The work sheet as well as the population statistics for each ward and precinct indicated that ward 2 in the city of Prairie Village had four precincts and that the population of precincts 1, 2 and 3 was 3,708, and that the population of precinct 4 was 1,255.
After it concluded that the five representative districts in Johnson County be established by House Rill No. 2 to include the areas, wards and precincts as designated on the work sheet, the house committee directed that the work sheet be transposed into a typewritten form. The typewritten form was delivered to the house committee and subsequently was used by the bill drafting department to draft House Rill No. 2 as introduced. However, in the transposition from the pencil copy to the typewritten form, precincts 1, 2 and 3 were inadvertently deleted from ward 2 and in drafting the bill all of ward 2 was included in district 11. The typewritten form presented to the bill drafting department made no reference to any particular precincts of ward 2 in district 11 but did contain the population figure of 3,708 persons — the combined population of precincts 1, 2 and 3 of that ward, and which, when added to the population of the other areas placed in district 11, made a total district population of 33,192.
In district 13 the typewritten form made reference to precinct 4 of ward 2 with a population of 1,255 persons, the same number as appeared on the pencil copy. When the population of precinct 4 of ward 2 is added to the population of other areas placed in district 13, it makes a total district population of 32,109 as established by the method of equal proportions. To arrive at a total district population for district 11 of 33,092 it was necessary that the 3,708 population of precincts 1, 2 and 3 of ward 2 be included, and to arrive at the total district population for district 13 of 32,109, it was necessary that the I, 255 population of precinct 4 of ward 2 be included.
When the geography of districts 11 and 13 is considered, it is apparent that to more fully effectuate the purpose of the legislature in drawing compact districts of near equal population, precinct 4 of ward 2 is more suited to being placed in the 13th and not in the 11th district. The districts of Johnson County are outlined on a county precinct map which was attached to the joint motion and the map shows that the inclusion of precinct 4 of ward 2 in the 11th district would be lacking in compliance with the standard of compactness which this court recommended in its opinion filed December 5,1963. As indicated on the map, precinct 4 of ward 2 is triangular in shape and only touches a comer of district 11 at one point. On the other hand, with the precinct as a portion of district 13, that district would be generally rectangular in shape and both districts would be compact.
As previously indicated, with precinct 4 of ward 2 placed in district 13, districts 11 and 13 would have a population of 33,192 and 32,109 respectively. Those total district population figures produce a result closer to the mean population of 32,836 for the districts in Johnson County than if precinct 4 of ward 2 were placed in district II, in which case district 11 would contain 34,447 and district 13 would contain 30,845. We think this is further indication that the legislature intended to include precinct 4 of ward 2 in district 13. In Harris v. Shanahan, supra, we said: “. . . there should be as close an approximation to exactness as possible and this is the utmost limit for the exercise of legislative discretion. . . (l. c. 205.) When the act is construed as placing precinct 4 of ward 2 in district 13, both districts would be as close an approximation to exactness as possible as required by the mandate of our Constitution pertaining to apportionment.
As was stated in Harris v. Shanahan, supra, the governor is an essential part of the co-ordinate function in enacting laws, and is one of the three lawmaking powers of the state. When the governor signed House Bill No. 2 he noticed the obvious conflict therein but concluded to sign the bill making it a law. In doing so, he appended his interpretation of the act based upon the records of the research department and other data made available to him, and concluded it was clear the legislature intended that precinct 4 of ward 2 be included in district 13. In Sutherland Statutory Construction, Vol. 2, 3d Ed., Sec. 5004, p. 488, the rule is stated: “The governor’s action in approving or vetoing a bill constitutes a part o£ the legislative process, and therefore the action of the governor upon a bill may be considered in determining legislative intent.”
In view of the foregoing, the apparent conflict of provisions appearing on the face of House Bill No. 2 are required to be resolved by this court through the use of its power of statutory construction. Applicable principles of statutory construction together with the governor’s interpretation when he approved the bill, the report of the research department of the legislative council, the population statistics of the various wards and precincts of Johnson County, and the nature of the boundaries and location of the wards and precincts therein, require that we hold precinct 4 of ward 2 of the city of Prairie Village is solely a part of representative district 13.
As previously indicated, the purpose and intent of both Senate Bill No. 2 and House Bill No. 2 was to apportion the Senate and the House of Representatives in accordance with the mandate of Article 2, Section 2, and Article 10, Sections 1 and 2 of the Constitution of Kansas, and we hold that both acts are constitutional and valid. Hence, it follows that judicial action has ceased and the judgment of the court below pertaining to equitable relief as well as the manner of holding future elections as therein directed has died of its own terms. | [
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The opinion of the court was delivered by
Fatzer, J.:
The Kansas food, drug and cosmetic act authorizes the State Board of Health or any of its authorized agents to detain or embargo and bring a libel for condemnation against any article of food which is “misbranded” when the authorized agent finds or has reason to believe that such food is adulterated, or so misbranded as to be dangerous or fraudulent. (G. S. 1961 Supp., Ch. 65, Art. 6; 65-657, 65-658, 65-660, 65-665.) The act defines “misbranded” in G. S. 1961 Supp., 65-665, and the pertinent portion reads: “A food shall be deemed to be misbranded: (c) If it is an imitation of another food, unless its label bears, in type of uniform size and prominence, the word, imitation, and immediately thereafter, the name of the food imitated.”
The appellants, the members of the State Board of Health and its duly authorized agents, acting pursuant to the act, embargoed approximately 878 quarts of Coffee-Rich and further threatened to detain or embargo additional quantities of Coffee-Rich in various places throughout the state wherever the product was offered for sale or sold. The seizure was on the ground that Coffee-Rich was suspected of being misbranded because the containers in which it was sold were not labeled as “imitation cream,” or “imitation half- and-half.” No claim was made that the product was misbranded in any other particular.
The plaintiff-appellee commenced this action to enjoin the appellants from enforcing the act and from embargoing or otherwise interferring with the marketing of the product on the ground that it was misbranded in violation of the act. (65-665 [c].)
It is unnecessary to summarize the pleadings except to say that issues were joined and trial was by the court which made findings of fact and conclusions of law and entered judgment for the plaintiff. In view of contentions made by the appellants, we quote in full the findings of fact.
“1. Plaintiff manufactures a product known as ‘Coffee-Rich.’ It is offered for sale to wholesale food distributors throughtout the State of Kansas. It is sold primarily as a coffee enricher and whitener.
“2. Coffee-Rich is a manufactured product, not a natural one, the result of plaintiff’s research and invention.
“3. The labels on the containers in which Coffee-Rich is sold accurately set out the ingredients of the product.
“4. Coffee-Rich is not an imitation of milk, half and half or cream. It contains none of the characteristic ingredients of any dairy product.
“5. To place on the labels of Coffee-Rich the word ‘imitation’ followed by the words ‘milk,’ ‘cream’ or ‘half and half’ would mislead and deceive the purchasing public and consumers.
“6. Prior to the filing of this suit defendants had detained, or embargoed, approximately 878 quarts of Coffee-Rich and threatened further detentions, or embargoes, of additional quantities of the product throughout the State of Kansas.
“7. The detention, embargo and destructon of Coffee-Rich by defendants has damaged and would damage the business, property and good will of plaintiff. It has, and would, constitute an arbitrary, unreasonable and discriminatory action by defendants.”
The district court concluded as a matter of law that Section 65-665(c) is a valid legislative enactment, designed to protect the public, to prevent fraud and safeguard the public health; that Coffee-Rich was not misbranded under the act; that the acts of the appellants, past and present, were an unconstitutional application of a valid statute, and that a permanent injunction against all the appellants should be and the same was accordingly granted.
The evidence is summarized: Coffee-Rich is a manufactured product and not a natural product. It is a wholesome food, and is generally sold in quart containers which truthfully list the ingredients of the product. Immediately below the trade name on the containers appears the words “contains no milk or milk fat,” and immediately below those words are the words “a vegetable product.” The product is basically a vegetable fat emulsion; it is artifically colored and its sole ingredients are vegetable fats, com syrup solids, sodium caseinate, sodium citrate, carrogeenin, sorbitan, monastearate, polysorbate 60, pure beta carotene and water. Coffee-Rich contains no cream, no half-and-half, no milk, and no dairy products. The product was designed primarily to enrich the taste and lighten the color of coffee, although it is also suitable for use on fruits, breakfast cereals, and desserts, and in soups and sauces.
As a vegetable fat product, Coffee-Rich is an original development, and it was never plaintiff’s intention to imitate cream, or half-and-half, or any other dairy product. Rather, it intended to create and produce a product which would not have the inherent defects of cows’ cream and other dairy products when used for purposes for which Coffee-Rich was designed. Cream and half- and-half are natural products. Coffee-Rich is distributed in a frozen state whereas dairy products are distributed in a liquid state. It does not taste like cows’ cream, neither does it have the same aroma nor the same texture as cows’ cream. The color of Coffee-Rich is yellowish white or possibly a tannish color and it is constant and never changes, whereas the color of cream varies at times during the year depending upon the diet of the cows producing the cream. It is a product uniform in flavor whereas cows’ cream varies in flavor. It can be stored for longer periods than cream; it has less bacterial organisms than cream, and it will remain sweet and fresh longer than cream. Coffee-Rich contains no cholesterol, whereas cows’ cream contains cholesterol, and it has a lower caloric value or content than cream. Coffee-Rich is resistant to “oiling off” and “feathering,” whereas cream exhibits those tendencies.
The appellants first argue that Coffee-Rich is an imitation of cream, or half-and-half, and therefore subject to the labeling requirements of G. S. 1961 Supp., 65-665(c). The district court found, as a matter of fact, that it was not. Whether one product is an imitation of another is a question of fact. Cases relied upon by appellants uniformly hold this to be the law. “Imitation is initially a question of fact. . . .” (United States v. 651 Cases, Etc., 114 F. Supp., 430, 431.) The word “imitation” as used in the statute (65-665 [c]) is not defined. Construing an identical federal statute (21 U. S. C. A., § 343 [c]) the Supreme Court of the United States, in 62 Cases of Jam v. United States, 340 U. S. 593, 599, 95 L. Ed. 566, 71 S. Ct. 515, speaking through Mr. Justice Frankfurter, said: “. . . In that section Congress did not give esoteric meaning to imitation. It left it to the understanding of ordinary English speech. . . .”
The parties are agreed that resort should be made to ordinary English definitions of the word “imitation” in making the initial investigation into the basic legal question presented. Various definí tions of the word “imitation” may be found in a variety of currently accepted encyclopedias of modern speech and language, and Webster’s New International Dictionary, Second Edition, Unabridged, defines the word “imitation” as “That which is made or produced as a copy; an artificial likeness; a counterfeit; simulating something superior . . .” In United States v. 651 Cases, Etc., supra, the court discussed whether the particular product there involved was an imitation of ice cream, and said:
“It is plain that no all-inclusive test of imitation can he prescribed. Resemblance and taste are elements as indicated in the case last above quoted 340 U. S. at page 599, 71 S. Ct. 515. Smell is included as one of the elements. U. S. v. 10 Cases, more or less, Bred Spred, 8 Cir., 49 F. 2d 87. The word connotes inferiority, 62 Cases of Jam v. United States, supra, 340 U. S. at page 600, 71 S. Ct. 515, in the sense that it is cheapened by the substitution of ingredients. Resemblance alone is not enough to constitute imitation. Baltimore Butterine Co. v. Talmadge, D. C., 32 F. 2d 904, affirmed, 5 Cir., 37 F. 2d 1014. It would seem that imitation is tested not by the presence or absence of any one element of similarity, but rather by the effect of a composite of all such elements. . . .” (p. 432.)
In holding that Chil-Zert was an imitation of chocolate ice cream the court pointed out that it contained the identical ingredients of chocolate-flavored ice cream in approximately the same proportions, “except that soy fat and soy protein are used therein in place of milk fat and milk protein;” that it was manufactured substantially in the same manner as chocolate ice cream, and with the use of similar machinery; that it was similar in taste, appearance, color, texture, body and melting qualities; that it had identical use and that “its composition differs only from ice cream in the substitution of a cheaper ingredient; namely vegetable oil in place of milk products.”
At the outset we note that from the record in the present case there is (1) no identity in method of manufacture — in fact, one product involved is a natural one and not a manufactured one; (2) no identity of ingredients, and (3) no “substitution” of one ingredient for another.
The purpose of the Kansas act, with respect to misbranding, is to prevent fraud and deception and to make it possible that the consumer should know that an article purchased was what it purported to be; that it might be bought for what it really was and not upon misrepresentations as to character and quality. In that connection, the appellants list eleven elements of similarity to arrive at “a composite of all such elements” which they contend makes Coffee-Rich an imitation of cream, or half-and-half. We shall examine each item, one by one. (1) Both, they say, are emulsions— but they fail to state that the basis of the manufactured Coffee-Rich emulsion is a vegetable oil, whereas the base of the natural cream, or half-and-half, emulsion is animal fat — a significant difference. (2) Both, they say, are homogenized — but they fail to state that any other products such as cutting oils, sheep dip, asphalt emulsions and many food products are also homogenized. (3) It is said both are pasteurized — but they fail to mention that orange juice, tomato juice, all fruit juices, wines and beer in cans are also pasteurized. Surely no one would contend that those items are imitations of dairy products. (4) It is said both are marketed in “milk-type” cartons — but, again, they fail to mention that orange juice, orange drinks, lemonade, tomato juice and apple cider are also marketed in similar containers. Again, surely, no one would contend that those items are imitations of dairy products. (5) It is claimed that both have identical uses — but how could this create an imitation? Illustrations of this point are legion: nylon and silk, saccharine and sugar, Crisco and lard, Naugahide and leather. Those products are not imitations — they are new scientific products having similar uses. (6) It is said the color of Coffee-Rich and the dairy product is similar —but the evidence is clear that the color of Coffee-Rich is constant and is designed to be such, whereas the color of cream and half-and-half is subject to change dependent upon the diet of the cotvs producing the cream. (7) It is said viscosity appears the same. We do not so read the record. (8) They say the smell is the same. Again, we do not so read the record. (9) It is said that the fat content of Coffee-Rich is somewhere between cream and half-and-half — the record so indicates, therefore it is an imitation of neither. (10) It is also said that the caloric content is somewhere between cream and half-and-half. The record so indicates, but, again, it is an imitation of neither. (11) The appellants say the difference in taste is slight. The record indicates that the taste is quite different. Coffee-Rich has a sweeter taste and is much more bland, while the dairy products have a “cowy” flavor.
To sum it up, the appellants contend the two products are indistinguishable without laboratory analysis. In support of the contention, they cite United States v. Two Bags, Etc., 147 F. 2d 123, but that case involved an adulterated product and dealt with the question of completely banning from interstate commerce an inferior and adulterated product. It did not deal with the question of what a product was, whether it was an imitation and whether it was properly or improperly labeled. On this point no claim is made that Coffee-Rich is adulterated, or that it is impure or in any manner injurious to the health of the consuming public. The Two Bags case simply serves no useful purpose in determining whether Coffee-Rich is an imitation cream, half-and-half, or, for that matter, any food product.
The appellants also cite the case of 62 Cases of Jam v. United States, supra. That case does not touch the problem now before us. There it was conceded that the product in question was an imitation and was so labeled. The question was whether an admitted imitation product could be lawfully sold. It was held that since the product was unequivocally labeled as an imitation in conformity with federal requirements (21 U. S. C. A. §343 [c]), and did not purport or represent to be the food product imitated, it was not mislabeled and was not subject to seizure and destruction by the federal administrator.
The question simmers down to this: Must a product which contains no milk products and which is a distinctive new product having uses similar to milk products be labeled an imitation milk product? We think not. Courts, common usage, and dictionary definitions are agreed that “imitation” connotes an inferior quality or watered-down version of the imitated item. The implication is that imitations contain some of the imitated substances and are of lesser quality or quantity. (62 Cases of Jam v. United States, supra.) The word “imitation” imparts more than mere resemblance or similitude. (Midget Products, Inc. v. Jacobsen, 140 C. A. 2d 517, 295 P. 2d 542; Baltimore Butterine Co. v. Talmadge, 32 F. 2d 904; Carey v. Instantwhip Schenectady, Inc., 217 N. Y. S. 2d 253.) “Cream” and “imitation” are contradictory words. An imitation cannot be genuine; the two terms are antithetical. By implication or otherwise, Coffee-Rich contains no milk, cream or butter fat, nor any other characteristic or distinctive ingredient of cows’ cream. The label expressely declares that it “contains no milk or milk fat,” but instead, is “a vegetable product.” Its taste is discernibly different from cows’ cream. While it has uses similar to cream and does somewhat resemble cream, that alone does not make it an imitation. The fact that sometimes it is used as a substitute for cream or half-and-half without being declared to be such, would not justify its being condemned under the act. (Baltimore Butterine Co. v. Talmadge, supra.)
We reach the inescapable conclusion that Coffee-Rich is not an imitation of cream or half-and-half and that it is a new and distinct food product having characteristics unique unto itself. Coffee-Rich is no more an imitation of cows’ cream, half-and-half, or any other dairy product than nylon is an imitation of silk, saccharine an imitation of sugar, or Crisco an imitation of lard. Those products, and Coffee-Rich, are separate, distinct, individual products developed as a result of modern scientific and technical advances and inventions. They are products sui generis. (Midget Products, Inc. v. Jacobsen, supra.) Paraphrasing Baltimore Butterine Co. v. Talmadge, supra, the state of Kansas is not committed to the proposition that nothing new and distinct is possible. To require the product here involved to be labeled “imitation cream,” or “imitation half-and-half” would thwart the development of not only Coffee-Rich but also other distinctive new food products and would fall within the evils seen in Baltimore Butterine Co. v. Talmadge, supra, where it was said:
“. . . The purpose of this law, it must be remembered, is not to protect other industries, even though they be so important as the dairy industry, but is to protect the consumers from deception or injury. If this be not the correct view, the state is committed to the use of creamery butter for all time for the purposes now used, and cannot use any substitute therefor derived from other sources, even though more economical, more palatable, and more popular.” (p. 909.)
To the same effect is Midget Products, Inc. v. Jacobsen, supra. There the plaintiff proposed to manufacture and sell a product containing no milk or milk fats, the ingredients of which would be listed on the label stating that it contained no milk or milk fats. It was held to be not an imitation milk product and the plaintiff was not required to label the product as an imitation milk product. In the opinion it was said:
“In the present case, the evidence supports the finding that the product is not an imitation milk product, but it is a food product of its own distinctive character. The product does not contain any milk or milk fat. The ingredients of the product will be listed on the label, and the label will state that the product contains no milk or milk fat. To require the plaintiff, by reason of said sections of the Agricultural Code, to label its product an ‘imitation’ when it is not an imitation would be an unconstitutional application of said sections, and would be an unreasonable interference with plaintiff’s property and business. . . .” (l.c. 522.)
Since criteria for finding an imitation are absent, Coffee-Rich is not an imitation milk product within the recognized principles of law for determining what is an imitation either in fact or in law, and we conclude that the labeling requirements of Section 65-665 (c) cannot be applied to it.
The appellants next contend the district court erred in refusing to make certain requested findings of fact in determining whether Coffee-Rich was an imitation. They introduced evidence with respect to similarities in taste, color, use, containers, viscosity, fat content, caloric content, and contend the court’s findings failed to state whether there were or were not such similarities in the eyes of the consuming public. No claim is made that the court’s findings of fact were not supported by substantial evidence, or that the conclusions of law were not supported by the findings of fact.
Under our statute (G. S. 1949, 60-2921) the court is required, when requested, to make only “conclusions of fact.” See Alexa v. Alexa, 108 Kan. 38, 46, 193 Pac. 1083; Jernberg v. Evangelical Lutheran Home for the Aged, 156 Kan. 167, 174, 131 P. 2d 691. In Wagner v. Sunray Mid-Continent Oil Co., 182 Kan. 81, 318 P. 2d 1039, it was said: “ . . . Cases which enunciate the duty of the district court under the statute hold that it is not required to make findings of evidentiary facts, only conclusions of fact, or ultimate facts. . . (p. 87.)
It has been said that when a court sits as a trier of facts and is asked to make findings of fact, it is presumed to make findings of fact upon all questions necessary to sustain the judgment rendered, and the facts found will be presumed by this court to embrace all the facts of the controversy established by the proof. (Snodgrass v. Carlson, 117 Kan. 353, 232 Pac. 241; Black v. Black, 123 Kan. 608, 610, 256 Pac. 995.)
Basically, there was one all-important ultimate question of fact in the case: Was Coffee-Rich an imitation cream or half-and-half? If so, it falls within the provisions of the act, and if not, the statute is inapplicable. Upon that basic issue the district court found, in finding No. 4, that Coffee-Rich was not an imitation milk, cream or half-and-half, and contained none of the characteristic ingredients of any dairy product. All else was evidentiary detail. See Henderson v. Kansas Power & Light Co., 191 Kan. 276, 285, 380 P. 2d 443, and cases cited.
The appellants lastly argue that it was error to exclude the testimony of Keith Kappelmann, the manager of the State Office Building Cafeteria and the Myron Green Cafeteria, in Topeka. His proffered testimony was that Coffee-Rich was served in both places from an ordinary Wyatt “cream” dispenser; that he had not advised his customers he was serving Coffee-Rich, and that he had no complaint from his customers. We think the evidence was irrelevant and immaterial. In the first place, the product was being served in a “dispenser,” not from the “immediate container.” (G. S. 1961 Supp., 65-656 [h], [i], [/]; 65-665 [c].) Secondly, the evidence was of no probative value except to show that Coffee-Rich may successfully be used for the purpose for which it was designed. What the product is, in fact, is not affected one way or the other by the manner in which it is dispensed. Calling nylon silk does not make nylon an imitation. We think the court properly excluded the evidence.
The district court heard all the evidence presented at the trial, including a visual examination of samples of cream, half-and-half, and Coffee-Rich, and made its conclusions of fact as required by the statute. In so doing, it is presumed that it considered all material facts and circumstances in arriving at its conclusions quoted above. There is substantial evidence to support the one basic ultimate fact in the case: that Coffee-Rich is not an imitation cream, or half-and-half, and the district court correctly concluded as a matter of law that the product was not subject to the labeling requirements of G. S. 1961 Supp., 65-665(c).
The judgment is affirmed.
Jackson, J., not participating. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a negligence action arising out of a fire started when the plaintiffs’ bulldozer severed a high pressure gas transmission line connection of the Kansas Power and Light Company (defendant-appellant-cross appellee) while doing certain street improvement work in the city of Assaria, Kansas. The bulldozer was a total loss as a result of the fire and a nearby house and its contents were consumed. Plaintiffs seek to recover for the bulldozer and for amounts which they were adjudged liable to pay in connection with the loss of the house and contents. The defendant cross-claimed for loss of a gas town border station and equipment and a quantity of natural gas.
The case was tried to a jury which returned a verdict for less than half the sum sought. The trial court granted a motion for a new trial on the question of damages only. Appeal has been duly perfected by each of the parties from various orders of the trial court presenting the issues hereinafter discussed.
On the 31st day of August, 1961, L. W. Rexroad and Jay M. Rexroad, d/b/a L. W. Rexroad and Son (plaintiffs-appellees-cross appellants), hereafter referred to as Rexroad, entered into a written street improvement contract with the city of Assaria, Kansas. The contract called for the grading, curbing and guttering of certain streets in the city. Work under the contract was commenced on or about October 1, 1951. At about this same time L. W. Rex-road went to the Salina office of the Kansas Power and Light Company and there obtained a sketch map showing the general location of its gas transmission and distribution lines within the city of Assaria. The Kansas Power and Light Company had a franchise to serve gas within the city of Assaria and had transmission lines running through the city in addition to its distribution system. The map was not complete in that it did not show dimensions, depths or many other details. Rexroad did not rely on the map and the jury so found.
The Kansas Power and Light Company’s high pressure transmission lines were located in or near Railroad Avenue, a north-south street on the eastern edge of the city. It had a 6-inch gas transmission line running north and south along the eastern edge of Railroad Avenue, being between the edge of the street and the railroad right of way adjacent on the east. The Kansas Power and Light Company also had an 8-inch gas transmission line running north and south approximately in the center of Railroad Avenue. These two transmission lines were installed in 1928. There were connections or taps running from each of these transmission lines into a gas town border station on the west curbing of Railroad Avenue in the block in which the accident occurred. This town border station was the point from which gas service was provided to the town. From there the gas was piped to the low pressure distribution system in the town.
The map showed a 2-inch connection from the high pressure 6-inch main to the gas border station on Railroad Avenue, but no such connection was shown on the 8-inch high pressure gas main. It was this undisclosed 2-inch connection from the 8-inch high pressure gas main that was struck by the bulldozer of Rexroad on February 2, 1952, causing all the damage involved in this case.
The portion of the line struck by the bulldozer was a 2-inch pipe rising vertically 13 inches from the top of the 8-inch main and then back in a “U” shape to the level of the 8-inch pipe and then turning in a southwesterly direction to a connection in the town border station. The loop as just described had threaded fittings to compensate for expansion and contraction of the line. The 13-inch riser would have extended 2 inches above the top of the valley gutter to be constructed by Rexroad at that point. This valley gutter was clearly shown on the plans previously left with the office of the Kansas Power and Light Company so that such hazards could be called to the attention of Rexroad, but the riser and the 2-inch connecting pipe were not shown on the map.
A 6-inch high pressure main was known to be adequate to serve a town the size of Assaria.
The construction crew of the Kansas Power and Light Company was asked to and did lower the 6-inch high pressure line at the request of the resident engineer of the city, James A. Newberry, because it was in the area where Rexroad was to construct a catch basin to catch the water from the valley gutter under which the 2-inch pipe was later found to rise 13 inches from the 8-inch high pressure line. Other changes were requested but no request for alteration or change was made concerning the 8-inch line, it being thought the 8-inch line was far enough out in the street to avoid interference. Upon completion of the work by the Kansas Power and Light Company’s employees, its foreman told the employees of Rexroad the area had been cleared so that work could safely proceed. No disclosure was ever made of the presence of the 13-inch riser until it was struck by the bulldozer.
There was testimony that the minimum safe depth at which such high pressure lines should be buried was 24 inches from the surface of the ground to the top of the pipe, and that where there is a possibility of the ground being worked, either by grading or plowing or any form of earth moving, it should be buried at a depth of 3 feet. The testimony was that the minimum safe depth for the burial of the 2-inch riser in question was the same as for the 8-inch pipe itself, in that it also contained gas under high pressure the same as the 8-inch line. There was also testimony to indicate that it was not necessary that such riser be vertical, that it could be horizontal and still serve the same purpose, and the safer practice was to have it horizontal rather than vertical.
As a further precaution, because of the great hazard of the high pressure gas pipelines, two employees of Rexroad went ahead of the bulldozer with “sharpshooter” shovels as excavation was being done in front of the gas town border station, probing the ground to be sure no pipes were in the path. While proceeding north on the western side of Railroad Avenue, the right or eastern edge of the bulldozer blade struck the hidden riser or expansion loop which extended upward on the 8-inch main bending it sufficiently to sever the connection. A fire immediately broke out. It completely consumed the bulldozer, the town border station of the Kansas Power and Light Company and a nearby house belonging to one Anna Anderson and her daughter, Jo Ann Brewer.
On January 14, 1953, Anna Anderson and Jo Ann Brewer filed an action against Rexroad for the replacement cost of their house and contents and the loss of use, suing as third party beneficiaries of the aforesaid contract between the city of Assaria and Rexroad. The Kansas Power and Light Company was not a party to that action, nor was it ever asked to participate in the defense thereof. Four months after the filing of the Anderson case, and on May 26, 1953, Rexroad sued the Kansas Power and Light Company in tort, seeking damages only for the loss of the bulldozer. While the action for the bulldozer was pending, the Anderson case made three trips to the Supreme Court. (Anderson v. Rexroad, 175 Kan. 676, 266 P. 2d 320; 178 Kan. 227, 284 P. 2d 1077; and 180 Kan. 505, 306 P. 2d 137.) Judgment was finally affirmed in favor of the plaintiffs and against Rexroad in the contract case.
It was stipulated by the parties that Rexroad did in fact pay to Anderson and Brewer $7,075, which included $2,275 for loss of use and $4,800 for the property destroyed, all as required by the final decision of this court upon appeal from the trial of the case.
Trial of the instant action was continued repeatedly awaiting the outcome of the Anderson case. That decision did not become final until January 12,1957. Approximately thirty days later on February 13, 1957, Rexroad filed a written application for permission to file an amended and supplemental petition. It fully alleged the facts concerning the Anderson case and further alleged the damages sustained in the amount of the judgment, including costs and attorneys’ fees (Loss of house, $3,800, loss of furniture and contents $1,000, loss of use $2,275, totaling $7,075; and costs, expenses and attorneys’ fees totaling $3,317.46) were a proximate result of the negligence of the Kansas Power and Light Company. On April 28, 1960, the application was granted in part giving Rexroad the right to file an amended and supplemental petition stating the facts and include as an additional claim the amount of the judgment in the Anderson case, but the trial court denied Rexroad the right to include costs, expenses and attorneys’ fees.
Prior to the introduction of evidence in this case the trial court further limited this claim of Rexroad to $4,800, representing the loss of the Anderson house and contents. For the loss of the bulldozer Rexroad sought to recover $14,000 in this action.
The jury found for Rexroad in the sum of $4,800 without any explanation as to how the amount was determined. In answer to special questions the jury found the Kansas Power and Light Company’s only act of negligence to be the following: “By not maintaining the swing connection at a safe depth.”
The jury found generally against the Kansas Power and Light Company on its cross petition for loss of its town border station and a quantity of gas.
Various post-trial motions were filed, all of which were overruled, except the motion for a new trial which the trial court granted, limiting the new trial to the question of damages only.
The first question presented is whether the trial court erred in permitting Rexroad to file and recover under an amended and supplemental petition.
The Kansas Power and Light Company contends the trial court abused the exercise of its power of discretion in permitting Rex-road to amend and supplement the petition by “tacking on” the claim for amounts which Rexroad had been adjudged liable in the Anderson case; that it erred in failing to sustain the Kansas Power and Light Company’s motion to strike such allegations from the amended petition, or, in the alternative, in failing to sustain a demurrer thereto.
It is claimed the amendment substantially changed the claim of the original petition, was not in furtherance of justice within the meaning of G. S. 1949, 60-759, and should therefore not have been allowed.
The original petition stated a cause of action in tort for damages against the Kansas Power and Light Company growing out of the loss of a bulldozer. It is claimed Rexroad by the amendment sought to place the Kansas Power and Light Company in the position of an indemnitor by demanding of it the amount of the judgment, court costs, attorneys’ fees and expenses incurred by Rex-road in an independent action by an injured third party. It is charged that the substance of the new claim was more than just a claim for additional damages, but was in reality a new cause of action based upon an implied contract of indemnity. Otherwise, it is argued, there could be no claim for attorneys’ fees, costs and other expenses. It is argued that such elements of damage would not be recoverable in the ordinary tort action as pleaded in Rex-road’s original petition, nor in an action by Anderson against the Kansas Power and Light Company. (Citing, 15 Am. Tur., Damages, § 142, p.550.)
The moving cause of the damage to Rexroad alleged in the petition was the negligence of the Kansas Power and Light Company in not maintaining its high pressure gas line at a sufficient depth. Before the damage to Rexroad becomes material, viewing the action at the pleading stage, it must be established that the Kansas Power and Light Company was negligent. In the original petition as filed, Rexroad claimed damage for the loss of a bulldozer, and by the amended and supplemental petition he made an additional claim for the money paid as a result of the Anderson action.
The Kansas Power and Light Company attempts to confuse the issue by switching from the contract action to a negligence action. It was unnecessary for Rexroad to notify the Kansas Power and Light Company of the action against it by the plaintiffs in the Anderson case, because that action was based entirely upon the contract between Rexroad and the city of Assaria. As a result of litigation it was determined that the plaintiffs in the Anderson action were third party beneficiaries of such contract and entitled to recover. It was strictly a contract action which had nothing to do with the negligence of the Kansas Power and Light Company. The Kansas Power and Light Company was not a party to the contract involved in that action, and was not entitled to notice or the right to defend. The issue of negligence was immaterial in the contract action.
We need not be concerned whether the pleading under attack stands or falls as an amended petition under the provisions of G. S. 1949, 60-759. It comes within the provisions of G. S. 1949, 60-764, which permit the filing of a supplemental petition. This statute provides:
“Either party may be allowed, on notice, and on such terms, as to costs, as the court or judge may prescribe, to file a supplemental petition, answer or reply, alleging facts material to the case, occurring after the former petition, answer or reply.”
The trial court permitted Rexroad to file a supplemental petition after notice and hearing. The additional claim alleged facts material to the case which occurred after the former petition had been filed. While the loss of the house and contents for which suit was brought against Rexroad occurred at the time of the initial fire and explosion, which is the basis of this lawsuit, Rexroad was not connected in any way with that property until it was ultimately determined by this court that liability accrued by reason of the contract which Rexroad had with the city of Assaria.
The question next posed is whether the statute of limitations has run on the additional claim asserted by Rexroad in the amended and supplemental petition.
No Kansas cases have been found to be directly in point on the facts here presented, but a few are analogous. In substance, they involve the execution of a contract as a result of the fraudulent misrepresentations of another, a suit by the defrauded party on that contract, and a subsequent tort action by the contracting party held liable against the perpetrator of the fraud to recover the amount of the judgment in the first case. (Bank v. Williams, 62 Kan. 431, 63 Pac. 744; McOsker v. Federal Insurance Co., 115 Kan. 626, 224 Pac. 53; and Bank v. Bank, 116 Kan. 530, 227 Pac. 365.)
In Bank v. Bank, supra, an agent employed for the handling and recording of a mortgage, who was compelled to pay a loss caused by the negligence of a subagent in failing to have the mortgage recorded, was entitled to recover such loss from his subagent. It was said the statute of limitations did not begin to run on the subsequent tort action until the plaintiff was required to pay the judgment in the first action.
A similar case upheld on the theory of indemnity arose in the state of Missouri in City of Springfield v. Clement et al., 205 Mo. App. 114, 225 S. W. 120. The court there held where a person constructively negligent is compelled to pay a judgment on account of the primary negligence of another, the statute of limitations does not begin to run against his right of action to recover indemnity until the date of the payment of the judgment, when the cause of action first accrues.
Applying the rule above stated in Bank v. Bank, supra, if Rexroad had not lost the bulldozer, for which he originally brought suit, in the same fire which destroyed the house, he could have waited until after his damage was fully established in the Anderson case, and then filed suit against the Kansas Power and Light Company to recover. Prior to the trial and the third appeal of the Anderson case to the Supreme Court, the liability of Rexroad in the Anderson action could not have been ascertained with any degree of certainty.
On the facts in this case we hold the statute of limitations did not begin to run against Rexroad on the additional claim set up in the amended and supplemental petition until he was required to pay the Anderson judgment. Application was made to file the amended and supplemental petition approximately thirty days after the Anderson judgment became final, and by reason thereof we hold the additional claim is not barred.
In the fraud cases above cited (Bank v. Williams, supra; and McOsker v. Federal Insurance Co., supra) attorneys’ fees and expenses were recoverable as compensatory damages in addition to the amount of the judgment and costs. In those cases, however, the loss was sustained through fraud. In the instant action we are not concerned with fraud, and while the amended and supplemental petition has some of the characteristics of indemnity, it does not clearly fall within this classification.
In Fenly v. Revell, 170 Kan. 705, 228 P. 2d 905, it was said after the citation and discussion of many authorities:
“. . . all the authorities now recognize that the doctrine of subrogation may be invoked in favor of persons who are legally obligated to make good a loss caused by the negligence or tortious acts of another. . . .” (p. 709.)
Further in the opinion the court said that legal subrogation did not depend upon contract or assignment, but followed as the legal consequence of the acts and relationship of the parties.
Syllabus ¶ 2 in United States Fidelity & Guaranty Co. v. Maryland Cas. Co., 186 Kan. 637, 352 P. 2d 70, reads:
“ ‘Legal’ subrogation is grounded in equity and arises by operation of law. But no general rule can be laid down which will determine all cases for application of the doctrine. Whether or not it is applicable depends on the facts and circumstances of each particular case as it arises, but ordinarily the remedy is broad enough to include every instance in which one person, not a mere volunteer, pays a debt for which another is primarily liable and which in equity and good conscience should have been discharged by the latter.”
Strict adherence to the doctrine of subrogation would permit Rexroad, on the additional claim in the instant action, to recover only so much as Anderson and Brewer would have been permitted to recover in a negligence action against the Kansas Power and Light Company for the destruction of their home. It must also be observed that resolving the issue of Rexroad’s liability on the contract in the Anderson case was personal to Rexroad, in that his contract with the city of Assaria made him liable for all damages to buildings or other property located outside of the construction limits. (See, Anderson v. Rexroad, 180 Kan. 505, 507, 306 P. 2d 137.) We hold that it would be improper in the instant action, sounding in tort, to permit Rexroad to recover expenses and attorneys’ fees incurred as a result of the Anderson action against the Kansas Power and Light Company. To this extent the trial court was correct; but it was unduly restrictive in its order made prior to the trial which permitted Rexroad to show only $4,800 damages as a result of the Anderson action. On this point we hold the trial court should have permitted Rexroad to go to the jury on the additional claim to the extent of the judgment, including costs, which Rexroad was held liable to pay in the Anderson case. ($7,075 plus costs.)
The Kansas Power and Light Company contends the trial court erred in failing to render judgment in its favor notwithstanding the general verdict.
Pertinent findings made by the jury are as follows:
“Question 4: Did the plaintiffs use reasonable care, considering the danger involved, to locate the high pressure line or lines in Railroad Avenue prior to their excavation work on February 2, 1952? Answer: Yes.
“Question 10: Do you find the defendant KP&L was guilty of any negligence which was the proximate cause of the accident of February 2, 1952? Answer: Yes.
“Question 10a: If so, of what did such negligence consist? Answer: By not maintaining the swing connection at a safe depth.
“Question 11: Do you find the plaintiffs were guilty of any negligence which was the proximate cause of the accident of February 2, 1952? Answer: No.”
The Kansas Power and Light Company moved to set aside the verdict and answers to special questions, “for the reason that said answers to special questions are not supported by the evidence, are contrary to the evidence and are inconsistent.”
The Kansas Power and Light Company in its brief contends the answer to question No. 10a acquitted it of each and every allegation of negligence set forth in the petition.
This is raised for the first time on appeal. It has frequently been held that appellate review is limited to the issues and questions presented to the trial court, and the Supreme Court will not arbitrarily determine issues raised for the first time on appeal. (Connell v. Saco Oil Co., 170 Kan. 91, 223 P. 2d 1020; Tucker v. Hankey, 173 Kan. 593, 250 P. 2d 784; and Norris v. Nitsch, 183 Kan. 86, 325 P. 2d 326.)
Wholly aside from the foregoing, it may be stated the entire theory of the petition was that the Kansas Power and Light Company had not installed and maintained the “goose-neck” or “swing” pipe connection at a safe depth, and had failed to notify Rexroad of its location in relation to the work to be done by Rexroad in that area. The finding of the jury by its answer to question No. 10a was a positive finding to support the general theory of the petition on the issue of the Kansas Power and Light Company’s negligence. It has frequently been held that such findings are to be construed liberally with a view to ascertaining the intention of the jury. (Coryell v. Edens, 158 Kan. 771, 150 P. 2d 341; and Morrison v. Hawkeye Casualty Co., 168 Kan. 303, 311, 212 P. 2d 633.
Evidence presented by the parties to this action was conflicting. Therefore, the facts heretofore related have been stated most favorably to Rexroad in view of the specific finding of the jury on the issue of negligence, and the disposition of the case made on appellate review.
Rexroad contends the trial court erred in denying a motion to strike all reference to insurance coverage on the bulldozer' de stroyed from the answer of the Kansas Power and Light Company.
Paragraph No. 9 of the Kansas Power and Light Company’s answer alleged that plaintiffs were not the real parties in interest for the reason that they had been fully compensated for the loss of their bulldozer by a named insurance company, and that plaintiffs, therefore, had no right to maintain this action.
Thereafter, the plaintiffs filed a motion to strike paragraph No. 9 of the answer “for the reason that . . . defendant is fully advised that plaintiffs have a substantial beneficial interest in this litigation over and above the subrogation interest that may exist in favor of any insurance carrier.” An affidavit was filed by the plaintiffs in support of this motion at the time of the oral argument, but the court denied the motion. The point was again urged by counsel for the plaintiffs at the pretrial conference, but the trial court held it was a proper defense and evidence would be permitted on the point. It is disclosed that the plaintiffs had insurance coverage on the bulldozer for all but $250. Rexroad was paid $10,400 by the insurance company, thus indicating a total loss of $10,650 for the bulldozer. An expert witness testified the bulldozer was worth $11,000.
By permitting paragraph No. 9 to stand, insurance was injected into the case. It is apparent upon examining the amount of the verdict that the jury failed to compensate Rexroad for the bulldozer, returning a verdict of only $4,800. This represented the value of the house and contents paid by Rexroad to Anderson and Brewer as stipulated by the parties. (As heretofore stated the trial court limited the amount of recovery to $4,800 on the additional claim by an order entered prior to the trial.)
It is well settled that the damages recoverable for a wrong are not diminished by the fact that the party injured has been wholly or partly indemnified for his loss by insurance effected by him, and to the procurement of which the wrongdoer did not contribute. This rule is not affected by the fact that the insurer is entitled to be subrogated to the rights of the insured, as against the tortfeasor, or to recover back from him the amount he recovers. The question of the right to the proceeds of the recovery is a matter between the insurer and the insured. It constitutes no defense to the action for damages caused by the wrong, which must be brought in the name of the insured, although it might be for the use of the insurer. The reasons generally given for the rule are that the contract of insur anee and the subsequent conduct of the insurer and insured in relation thereto are matters with which the wrongdoer has no concern and which do not affect the measure of his liability. (15 Am. Jur., Damages, § 201, pp. 617, 618.)
This has no bearing on the right of a defendant to raise the defense of “real party in interest,” but once it has been shown that the plaintiff is a real party in interest, the defendant has no further right to bring insurance into the case.
It has been repeatedly held that a plaintiff cannot deliberately inject into a damage suit the fact that the defendant has liability insurance. (See, Caylor v. Atchison, T. & S. F. Rly. Co., 189 Kan. 210, 368 P. 2d 281; and cases cited in both the court and dissenting opinions.)
It is apparent the reason for the rule — that knowledge of the insurance of a defendant will incline the jury toward the case of the plaintiff — has application in reverse. Once it has been established that the plaintiff is a real party in interest, the trial court should exclude evidence of insurance from the case.
In the instant action Rexroad raised the point at every possible opportunity, and we hold the trial court erred when it permitted the insurance issue to stay in the case. This is emphasized by the fact that the jury failed to include the value of the insured bulldozer in the amount of the verdict.
This court has consistently ruled that an insured who has not been fully compensated for his loss can bring an action against the negligent party in his own name, for his own use, and for the benefit of the insurance carrier. (Clark v. Missouri Pac. Rld. Co., 134 Kan. 769, 8 P. 2d 359.)
The Kansas Power and Light Company contends the trial court erred in granting a new trial on the question of plaintiffs’ damages alone. Rexroad, on the other hand, contends the court should have granted plaintiffs’ alternative motion for judgment in the amount of $15,450, notwithstanding the verdict.
The trial court sustained Rexroad’s motion for a new trial, limited to the question of damage only.
G. S. 1949, 60-3004, gives the trial court a discretionary power to grant a new trial limited to a single issue, provided the issues involved in the action are separable.
Each of the parties herein relies upon Henderson v. Kansas Power & Light Co., 188 Kan. 283, 362 P. 2d 60. The court there said:
“In considering the question presented, several elementary and firmly-established rules are to be kept in mind. One is that ordinarily the granting or denial of a new trial rests in the sound discretion of the trial court and a ruling thereon will not be disturbed, absent a showing of abuse of discretion or other manifest error. Another is that until the contrary is shown, a jury is presumed to have acted fairly, reasonably, intelligently and in harmony with the evidence. Still another is that the same yardstick must be applied where the claim is that a verdict is inadequate as in a case where a verdict is claimed to be excessive, and before a new trial will be granted because of the size of a verdict it must appear to be so excessive or inadequate, as the case may be, as to have been given under the influence of passion and prejudice. A still further rule is that a new trial can be granted on one of several issues, such as plaintiff seeks here — on the question of damages only (G. S. 1949, 60-3004). It is equally well settled that in the determination of matters of this hind, involving personal injuries, there is no precise formula by which courts can be guided, and that each case must largely be governed by its own facts as established by the evidence.” (p. 289.) (Emphasis added.)
Further in the opinion the court said:
“Concededly, negligence and damages are legally separable issues, and on many occasions this court has granted new trials on the issue of damages alone. We believe, however, that the rule stated in the annotation ‘New Trial As To Damages Only,’ 29 A. L. R. 2d 1199, where at § 10, p. 1214, it is said:
“ ‘A new trial as to damages alone should not be granted where there is ground for a strong suspicion that the jury awarded inadequate damages to the plaintiff as a result of a compromise involving the question of liability. Or, as is said in 98 A. L. R. 944, if from the inadequacy of the damages awarded, in view of the evidence on the subject, or the conflict of the evidence upon the question of liability, or from other circumstances, the plain inference may be drawn that the verdict is the result of a compromise, such error taints the entire verdict, and a new trial should be ordered upon all issues.’
is applicable to the situation here presented.” (p. 291.)
It is unnecessary to delve further into the cases on this point. Admittedly, the question presented in the instant case is rather close. The majority of the members of the court are of the opinion that the jury has fully determined the question of negligence, and that the award of inadequate damages is not the result of a compromise involving the question of liability.
Rexroad argues there was no offer of evidence by the Kansas Power and Light Company as to any part of the damages claimed by them, and contends this is a complete acquiescence in the accuracy and reasonableness of the damages claimed. Thus, it is argued, the evidence of the plaintiffs stands unimpeached and uncontradicted at $15,450 of which $4,800 is for the payment to Anderson and Brewer and $10,650 for the destruction of the bulldozer. They argue the jury had no choice as to damages. There was only one set of figures to consider. Rexroad relies on Kansas Wheat Growers Ass’n v. Smith, 127 Kan. 267, 273 Pac. 437.
Actually, there was evidence that the bulldozer was of greater value than the amount for which the insurance company settled. Here it cannot be said that no controversy existed as to the amount of recovery as was true, for example, in the case of Kansas Wheat Growers Ass’n v. Smith, supra. It is therefore held the trial court did not err in ordering a new trial on the issue of damages, and the motion of plaintiffs for judgment notwithstanding the general verdict was properly overruled.
Other matters presented in the briefs have been considered but are rejected as having no merit.
The judgment of the lower court is affirmed as to all issues raised by the parties, except the pretrial order unduly restricting Rexroad by denying him the right to show the full amount of the judgment and costs in the Anderson case, and the order refusing to strike the issue of insurance from the answer of the Kansas Power and Light Company, as to which the judgment is reversed with directions to proceed in accordance with the rulings heretofore made in this opinion. | [
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|
The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment voiding certain city ordinances which sought to annex territory.
The facts are not in dispute but they are complicated by mete and bound descriptions of twelve separate tracts. We will not attempt specific descriptions.
Rounded by the city limits of the cities of Shawnee, Overland Park and Merriam were several tracts of land which had not been annexed to either of the cities. One tract was in excess of 80 acres. The other tracts consisted of ten acres or less and each was so situated that two-thirds of a line of boundary was the city limits of Overland Park except one ten acre tract which did not touch the city limits of Overland Park. All of the north line of the large tract was the city limits of the city of Merriam.
The city of Merriam announced its intention to annex all of the tracts and straighten out its boundary lines with 75th Street on the south and Antioch Road on the east. It had obtained the consent of the owner of the large tract and owners of six of the smaller tracts. Three of the smaller tracts consisted of hospital, school and cemetery grounds.
Soon after the city of Merriam announced its intention to annex the area, February 19, 1962, the mayor and councilmen of the city of Overland Park held a meeting at which time they enacted twelve separate ordinances annexing all of the small tracts and two parcels from the large tract. The ordinances were to become effective after their official publication which took place the next day.
About a week thereafter the city of Merriam enacted ordinances annexing the entire area. Some of the separate ordinances covered the same tracts as described and covered by the city of Overland Park ordinances.
The cities of Overland Park and Merriam filed their respective annexation ordinances with the county clerk and claimed the annexed tracts. The tracts in controversy were not platted. The cities and the area in dispute are located in Johnson County, Kansas.
The State of Kansas, on the relation of the county attorney of Johnson County, brought an action naming the cities of Overland Park and Merriam as defendants. The petition, in the form of an ouster proceeding, challenged the validity of the Overland Park annexation ordinances, but requested the district court to determine the validity of the annexation ordinances of both cities.
The trial court entered judgment decreeing that all o£ the annexation ordinances o£ the city of Overland Park were valid except ordinances numbered A-142, A-143 and A-144, and that all annexation ordinances of the city of Merriam were void, which covered similar tracts, except ordinances 250, 252, and 253. The ordinances of the two cities specifically mentioned covered the same three tracts.
The city of Overland Park has appealed from the judgment. Neither the state nor the city of Merriam has appealed. We therefore have only the question of the validity of the city of Overland Park ordinances before us for determination. Both the state and the city of Merriam have filed briefs in support of the judgment of the trial court.
Before considering the validity of the ordinances in question, some general observations may be helpful.
Cities are creatures of the legislature. They can exercise only such powers as are conferred by law and those necessary to make the conferred powers effective. They acquire no power by implication. (State v. Hannigan, 161 Kan. 492, 170 P. 2d 138 and Yoder v. City of Hutchinson, 171 Kan. 1, 8, 228 P. 2d 918.)
The legislature has absolute authority to create or disorganize municipal corporations. It also has absolute authority to enact provisions by which their boundaries will be increased or decreased. (State, ex rel., v. City of Kansas City, 186 Kan. 190, 195, 350 P. 2d 37.)
The wisdom, propriety, necessity or advisability of annexing territory to cities is not a matter for consideration by the courts. (State, ex rel., v. Kansas City, 122 Kan. 311, 321, 252 Pac. 714 and State, ex rel., v. City of Kansas City, 181 Kan. 870, 877, 317 P. 2d 806.) The basic function and duty of the courts is to determine whether a city has statutory authority and has acted thereunder in passing an annexation ordinance.
In State, ex rel., v. City of Topeka, 175 Kan. 488, 264 P. 2d 901, at page 491, it is said:
“Preliminary to discussing the specific contentions later considered, and for the purpose of clarification, some general observations are in order. The first is that the advisability of enlarging the territorial limits of a city is a legislative function which cannot be delegated to the court (Ruland v. City of Augusta, 120 Kan. 42, 242 Pac. 456). The duty of the court is only to determine whether under the facts the city has statutory authority to enact the ordinance under attack (State, ex rel., v. City of Kansas City, 169 Kan. 702, 222 P. 2d 714). . .
With the guiding rules before us we will first consider the validity of the Overland Park ordinance A-142. The statutory authority by which the city of Overland Park sought to annex the tract covered by the above ordinance is found in G. S. 1949, 13-202, which insofar as material at this point provides:
“Whenever any land adjoining or touching the limits of any city has been subdivided into blocks and lots, or whenever any unplatted piece of land lies within, or mainly within, any city, or any tract not exceeding twenty acres is so situated that two-thirds of any line of boundary thereof lies upon or touches the boundary line of such city, said lands, platted or unplatted, may be added to, taken into and made a part of such city by ordinance duly passed. . . .”
The particular tract in question consisted of ten acres and did not touch the boundary line of the city of Overland Park. There were three other tracts between the tract in question and the city’s boundary line. These three tracts were annexed by separate ordinances numbered A-137, A-138 and A-139. The three ordinances were enacted on February 19, 1962, but were not to become effective until official publication which took place the next day. At the time ordinance A-142 was enacted February 19, 1962, the tract covered by the ordinance did not touch the boundary line of the city of Overland Park. We must agree with the statement of the district court made in an informative memorandum decision, as follows:
‘In this case the land described in ordinance numbered A-142 met none of the requirements of the enabling act at the time of its passage, and, accordingly, the Court is obliged to hold and does hold that ordinance numbered A-142 of the City of Overland Park, Kansas, is void and of no force or effect whatsoever.”
Appellant, the city of Overland Park, appears to contend that ordinances numbered A-142, A-137, A-138 and A-139 could have been combined in one ordinance and that the tract covered by ordinance A-142 would have then been legally annexed. We must not be concerned with what the city might have done in the annexation of territory. As we have previously stated, the courts must be concerned only with the statutory authority for the action taken by the municipality.
We will next consider the validity of Overland Park’s ordinances numbered A-143 and A-144. It is admitted that they each attempt to take some sixteen acres from a large tract in excess of eighty acres. The tract covered by ordinance A-142 lies between the two.
The statutory authority by which the city of Overland Park sought to annex the tracts covered by ordinances A-143 and A-144 is to be found in the proviso of G. S. 1949, 13-202 which states:
“. . . Provided, That in adding territory to any city, if it shall become necessary for the purpose of making the boundary line straight or harmonious, a portion of a piece of land may be taken into such city, so long as such portion of the piece taken in does not exceed twenty acres.”
Again we agree with the statement of the trial court in its memorandum decision:
“Here, inasmuch as ordinance numbered A-142 has been held by the Court to be invalid, there exists no necessity for straightening or harmonizing the boundaries of the city as extended by ordinance numbered A-142, but if allowed to stand would seem to compound the already irregular and jagged boundary lines of the city at this particular location.”
Ordinances A-143 and A-144 did not tend to straighten the boundary line after ordinance A-142 failed.
The state suggests in its brief:
“It is the contention of the State that all of these annexation ordinances purported to be passed by the City of Overland Park are invalid by reason of being arbitrary, capricious and not a valid exercise of the annexing power granted by the legislature. The general law in Kansas has been that where the facts are such drat the city is authorized to extend its boundaries, it may do so without interference from the judicial branch as to a purely legislative decision, so long as it meets the required tests. However, these particular ordinances involve a situation which has not heretofore been considered by the Kansas courts, namely, a dispute between two cities over the annexation of a tract of land. . . ."
The state’s contention is based on premise that the city of Overland Park capriciously extended its boundary line north of 75th Street and created an irregular and jagged boundary line between it and the city of Merriam. The suggestion may have merit. A straight boundary line between two cities is desirable. However, this is a matter to be addressed to the legislature. We repeat, courts should only concern themselves with whether annexation ordinances comply with the authority granted by statute.
The appellant contends that city of Merriam ordinances 250, 252 and 253 should have been held invalid. The state has not challenged the validity of the ordinances.
One city cannot prosecute an action attacking the validity of an annexation ordinance of another city. Such action can only be prosecuted by the state acting through one of its proper officers such as the county attorney or the attorney general. (State, ex rel., v. City of Kansas City, supra, 198 and Lampe v. City of Leawood, 170 Kan. 251, 253, 225 P. 2d 73.)
The judgment is affirmed.
approved by the court.
Jackson and Fontron, JJ., not participating. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by defendants below from orders entered by the trial court on July 13, 1959, January 3, 1961, and January 4, 1961, but it has been admitted by the parties that the judgment entered on January 4, 1961, wherein the 1945 Water Appropriation Act of Kansas (G. S. 1949, 82a-701, et seq., as amended) was held to be in violation of the federal and state constitutions, and the orders of the court dated January 5, 1961, overruling defendants’ motions for new trial, are the controlling and decisive issues in this appeal notwithstanding the fact sixteen trial errors were alleged and the appeal is based on nineteen specifications of error. This case has been before this court on four previous occasions. (Cities of Hesston & Sedgwick v. Smrha, 179 Kan. 72, 293 P. 2d 241; City of Hesston v. Smrha, 184 Kan. 223, 336 P. 2d 428; City of Hesston v. Smrha, 186 Kan. 477, 351 P. 2d 204; Cities of Hesston & Sedgwick v. Smrha, 186 Kan. 785, 352 P. 2d 1053.)
The parties stipulated the only question on appeal is whether the above-mentioned act is constitutional under both our federal and state constitutions. It is further contended by appellants, the chief engineer, and the city of Wichita, that the same question was determined in Williams v. City of Wichita, 190 Kan. 317, 374 P. 2d 578 (app. dis. 375 U. S. 7, 84 S. Ct. 46, 11 L. ed. 2d 38, pet. for rehearing denied, 375 U. S. 936, 84 S. Ct. 328, 11 L. ed. 2d 267), where the act was held to be constitutional, and appellees also recognize the question was answered in the Williams case. The only further argument propounded by the appellees is that the Williams decision is erroneous and should be overruled.
Reference is hereby made to the opinion in the Williams case for a full disclosure of facts and a complete discussion of all the authorities, which need not be reiterated herein.
The judgment of the trial court is reversed.
Schroeder, J., dissents.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action to recover damages for personal injuries sustained by plaintiff (appellee) Arthur G. Jones as a result of being struck by an automobile driven by defendant (appellant) David Lee Garrett upon the city streets of Caney.
On January 10, 1961, plaintiff filed his petition against defendant in the district court alleging that on July 30,1959, the plaintiff, while working on the city street, was struck by an automobile being driven by the defendant; that as a direct and proximate result of the impact plaintiff suffered certain permanent injuries. The petition set forth certain specific acts of negligence on the part of the defendant that were the proximate cause of plaintiff’s injuries. Plaintiff sought judgment in a specified amount.
At the time of the accident defendant was a resident of the state of Kansas and subject to service of process in this state until February 15, 1960, when he absented himself from the state as a member of the armed forces, and has been absent continuously since that date. Several attempts were made by plaintiff to obtain service of summons on defendant within the state, the last attempt being made February 23, 1961. On November 20 defendant appeared specially and moved to quash the latter service of summons, which motion was sustained by the trial court on March 20, 1962. On the same day plaintiff filed his second amended petition, which was identical with his first amended petition, and attached thereto an affidavit alleging the defendant was not at the time a resident of the state of Kansas, and requested summons be issued under the provisions of G. S. 1961 Supp., ch. 8, art. 4; and on the same day the trial court made an order for service on the defendant by serving the secretary of state, pursuant to the mentioned statute. Summons was served on the secretary of state on March 31, 1962, and a copy of the summons and second amended petition was served on defendant by registered mail.
Subsequently defendant appeared specially and moved to quash the attempted service of summons for the reasons defendant was a resident of Kansas on the date of the accident, July 30, 1959, and that the court acquired no jurisdiction of the defendant by reason of the service from the secretary of state under the provisions of chapter 8, article 4, aforesaid, which law became effective July 1, 1961. Defendant’s motion to quash was overruled, from which order defendant appeals.
Sequentially defendant demurred to the plaintiff’s second amended petition on the ground the court had no jurisdiction. Pending hearing on this demurrer, plaintiff was granted permission, over defendant’s objection, to again amend his petition to include the following:
“Comes now the plaintiff, Arthur G. Jones, and for his cause of action against the defendant above named, alleges and states:
“1. That he is a resident of and his correct post office address is 110 Shale, Coffeyville, Kansas; that defendant David Lee Garrett, is a resident of and his correct post office address is 108 West Third Street, Caney, Kansas; that said defendant, David Lee Garrett, after the cause of action herein stated against him arose, did depart from the state of Kansas on or about February 15, 1960, and has been absent from the state of Kansas as a member of the United States Air Force continuously from that date to the present time, and by reason thereof, the time subsequent to February 15, 1960, is not computed for the purpose of the running of the statute of limitations as the same pertains to this cause of action.”
On October 18, 1962, the court overruled defendant’s demurrer to plaintiff’s petition as finally amended, from which order defendant appeals.
At the time plaintiff’s cause of action against defendant accrued, July 30, 1959, there was in force and effect G. S. 1949, 8-401, which provided that the acceptance by a nonresident person of the rights and privileges conferred by existing laws to operate motor vehicles bn the public highways of the state would be deemed equivalent to an appointment by such nonresident of the secretary of state to be his true and lawful agent, upon whom could be served all lawful process in any action or proceeding against said nonresident, growing out of any accident or collision in which said automobile might be involved, while such vehicle was operated in the state by such nonresident; and said acceptance or operation of said vehicle would be a signification of his agreement that any such process against him which was so served on the secretary of state would be of the same legal force and validity as if served upon him personally within the state.
The mentioned law was amended (G. S. 1961 Supp., 8-401, effective July 1, 1961) by the addition of the following provision:
“(a) As used in this act, each of the following words and terms, unless the context clearly requires otherwise, shall have the meaning respectively ascribed to it in this section: (1) ‘Nonresident’ or ‘nonresident person’ shall mean: (A) A person who is a nonresident of this state; (B) a person who is a resident of this state and who departs from this state subsequent to the accident or collision from which the action or proceeding against him or his representative arose and remains absent from this state for thirty (30) days continuously, whether such absence is intended to be temporary or permanent; (C) a person who at the time of the accident or collision from which the action or proceeding against him arose was a resident of this state but who has subsequently thereto become a nonresident of this state; (2) ‘representative’ shall have the meaning respectively ascribed to it in subsection (1) of section 59-102 of the General Statutes of 1949.”
The remainder of the amended section re-enacted the wording of the old law and was in full force and effect at the time the cause of action in the instant case arose.
The amended statute embodied no saving clause as to existing litigation. There is no dispute between the parties but that defendant Garrett was served with process in conformity with the 1961 law in force at the time of service. The question confronting this court is whether or not the amendment is effective to confer jurisdiction on the trial court inasmuch as the 1961 amendment added certain definitions of “nonresident” or “nonresident person.”
The defendant contends the statute as amended is substantive and not procedural and, therefore, acts only prospectively and not retrospectively. The plaintiff contends the statute is procedural and remedial, does not affect vested rights, and, therefore, should be applied retroactively.
In this state, as in many other states, the rule that statutes in derogation of the common law should be strictly construed has been made inapplicable by legislative enactment. (G. S. 1949, 60-102; G. S. 1949, 77-109.) This court has followed the mandate of the legislature and has expressed a liberal attitude in construing chapter 8, article 4, of the motor vehicle act. (Eisman v. Martin, 174 Kan. 726, 731, 258 P. 2d 296.) G. S. 1949, 77-201, First, provides that the provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions and not as a new enactment. This statute and our decisions compel the application in the instant case of the rule that ordinarily language of an earlier statute, which is preserved in an amendment, is deemed to speak as of the time of the original enactment and not as of a later date. (Pinkston v. Rice Motor Co., 180 Kan. 295, 307, 303 P. 2d 197.) It will be noted that the 1961 amended statute actually did not change the substance or wording of the previous statute but rather supplied only a definition for the word “nonresident.” It clearly appears that in defining “nonresident” to include a person who at the time of the accident or collision from which the action or proceedings against him arose was a resident of this state, but who has subsequently thereto become a “nonresident” of this state, reflects the fact the legislature intended such provision have retroactive application.
Procedure has been defined as the mode or proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right, and which, by means of the proceeding, the court is to administer — the machinery, as distinguished from its product; that which regulates the formal steps in an action or other judicial proceeding — a form, manner, and order of conducting suits or prosecutions. It is the machinery for carrying on the suit, including pleading, process, evidence, and practice, whether in the trial court or the appellate court, or in the processes by which causes are carried to the appellate court for review, or in laying the foundation for such review. (Black, Law Dictionary [4th ed. 1951] Procedure, pp. 1367, 1368; 34 Words and Phrases, per. ed., Procedural, p. 118; Ogdon v. Gianakos, 415 Ill. 591, 596, 114 N. E. 2d 686.)
Practice has been defined as the form or mode or proceeding in courts of justice for the enforcement of rights or the redress of wrongs, as distinguished from the substantive law which gives the right or denounces the wrong; the form, manner, or order of instituting and conducting a suit or other judicial proceeding, through its successive stages to its end, in accordance with the rules and principles laid down by law or by the regulations and precedents of the courts. (Black, Law Dictionary [4th ed. 1951] Practice, p. 1335; 33 Words and Phrases, per. ed., Practice, p. 179, et seq.)
In other words, procedure or practice is the mode or proceeding by which a legal right is enforced, that which regulates the formal steps in an action or other judicial proceedings; a form, manner, or order of conducting suits or prosecutions. (Ogdon v. Gianakos, supra.)
The process section of our motor vehicle act here in question is certainly not a part of the law which creates, defines or regulates rights. It is not part of the law creating any liability against the defendant for his alleged tort committed. It merely sets out a proper method for obtaining jurisdiction in specific instances and the means of acquiring jurisdiction is properly denominated as process. The issuance or service of process is not what makes one a party to a suit; it is merely a step in obtaining jurisdiction of his person after he is a party to a suit. The cause of action is the wrong done and arises from the manifestation of a right or an obligation or duty. (Foster v. Humburg, 180 Kan. 64, 299 P. 2d 46.) The right of action exists when a person or his property is injured or damaged by the use of a motor vehicle upon the Kansas highways. Plaintiff’s right of action came into existence when he was injured. Process is no part of the cause of action.
Sections 8-401 and 8-402 of the motor vehicle act of this state, as amended by the 1961 act, set forth the manner of serving process on a nonresident operator or upon the operator who at the time of an accident was a resident of Kansas but since has become a nonresident. It is a part of the procedure to be employed in obtaining a redress for the injury and damage alleged to have been sustained by the negligence of the defendant as set forth in the petition. It is a part of the law of procedure and not a part of our substantive law, and certainly affects no vested right of the defendant. (Ogdon v. Gianakos, supra.)
It is the law of this state that a statute which merely changes a remedy is not invalid, as there are no vested rights in any particular remedy. While generally statutes will not be construed to give them retroactive application unless it appears that such was the legislative intent, nevertheless when a change of law merely affects the remedy or law of procedure, all rights of action will be enforced under the new procedure without regard to whether they accrued before or after such change of law and without regard to whether or not the suit has been instituted, unless there is a saving clause as to existing litigation. (Ellis v. Kroger Grocery Co., 159 Kan. 213, 152 P. 2d 860, 155 A. L. R. 546; Ogdon v. Gianakos, supra; Tellier v. Edwards, 56 Wn. 2d 652, 354 P. 2d 925; 50 Am. Jur. 505, Statutes § 482; 82 C. J. S. 996, 997, Statutes § 421.)
The statute provides for substituted service of process upon a nonresident motorist or upon a resident motorist who subsequently leaves the state and becomes a nonresident. It operates to confer jurisdiction upon the state court and requires such motorist to answer for his conduct in the state where the action alleged against him arose as well as to provide a plaintiff a convenient method by which he may sue and obtain substituted service to enforce his right. It is a statute for the benefit of the injured person and not for the benefit of a nonresident motorist or a resident motorist who causes the injury within the jurisdiction of the state and then by absenting himself avoids service and prevents recovery.
It has been held a valid exercise of the police power of this state to regulate, limit and control the use of its highways in order to promote the safety and general welfare of the people, and this power extends to use by nonresidents as well as residents. (Riddle v. State Highway Commission, 184 Kan. 603, 339 P. 2d 301; Smith v. State Highway Commission, 185 Kan. 445, 346 P. 2d 259.)
The appointment by the legislature of the secretary of state as an agent of a defendant for service of process in suits arising from defendant’s alleged negligence in the operation of a motor vehicle upon the highways of this state has been held a valid exercise of the police power. The justification for such substituted service upon former residents is the same for substituted service upon nonresidents, which has been approved in Hess v. Pawloski, 274 U. S. 352, 47 S. Ct. 632, 71 L. Ed. 1091; Ogdon v. Gianakos, supra; and Tellier v. Edwards, supra.
The 1961 statute providing for service on the secretary of state in the case of a motorist who is involved in an accident while a resident but who subsequently becomes a nonresident merely affects the law of procedure and not the substantive law, disturbs no vested right nor contractural obligation of such person, and does not offend either the Constitution of this state or the United States. (McGee v. International Life Ins. Co., 355 U. S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 233; 16A C. J. S. 108, Constitutional Law § 418. See, also, 12 Kan. L. Rev. 70, 71 [1963] Retroactivity.) Consequently, such statute is given retroactive application.
Defendant contends this action is barred by the two-year statute of limitations (G. S. 1949, 60-306, Third). Plaintiff asserts inasmuch as defendant has been absent from the state as a member of the armed forces at all time since February 15, 1960, the statute of limitations is tolled by the Soldiers’ and Sailors’ Civil Relief Act, 50 U. S. C. A. App. § 525, which provides, in pertinent part, that the period prescribed by any law for the bringing of an action in any court by or against any person in the military service shall be computed by excluding the time spent in military service.
The wording of section 525 is too plain to require discussion. This and other courts have held that in an action against a serviceman a statute of limitations otherwise applicable has, by virtue of section 525, been tolled during the period of military service. (Lewis v. Publishing Co., 111 Kan. 653, 208 Pac. 254; Green v. Insurance Co., 112 Kan. 50, 54, 209 Pac. 670; Zitomer v. Holdsworth, 178 F. Supp. 504.) The fact that defendant might have been served with summons during the period of the statute of limitations is immaterial. Availability or nonavailability for service of summons has nothing to do with the result. The critical factor which brings section 525 of the act into play is that of military service. When that circumstance is shown, the period of limitation is automatically tolled during the duration of that service. (Zitomer v. Holdsworth, supra.) The act, 50 U. S. C. A. App. § 521, provides for no absolute bar to proceedings against one in the military service. (Fourth National Bank v. Hill, 181 Kan. 683, 314 P. 2d 312.)
Defendant contends it was an abuse of discretion for the trial court to permit an amendment to the petition after a demurrer had been lodged thereto. The amendment did not set up a new cause of action but merely tended to show that defendant was absent from the state as a member of the armed services during the time specified in the amendment, thereby tolling the statute of limitations on the cause of action stated in the original petition. Under the provisions of the statute (G. S. 1949, 60-759) great latitude is given to the trial court in the matter of amendment to pleadings with a view of curing defects, supplying omissions and preventing injustice. (Reed v. Western Light & Tel. Co., 155 Kan. 134, 138, 139, 122 P. 2d 723; Sundgren v. Topeka Transportation Co., 178 Kan. 83, 89, 283 P. 2d 444; Fisher v. Pendleton, 184 Kan. 322, 333, 336 P. 2d 472, 74 A. L. R. 2d 1274.) Courts will guard the rights of parties by permitting amendments to be made where they will accomplish justice. The court did so in this case.
In view of what has been said it is our conclusion the trial court had jurisdiction of the defendant and did not err in overruling defendant’s motion to quash the service of summons or in permitting plaintiff to amend his petition or in overruling defendant’s demurrer to plaintiff’s petition as amended. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Brewer, J.:
This action was on a note given by D. Cross & Sons to the defendant in error. The case was tried by the court, without a jury. No special findings were made, but only a general finding in favor of the bank. The bank claimed that plaintiff in error was, at the execution of the note, a member of the firm of D. Cross & Sons, and liable thereon. Two questions are presented. Did the court err in the admission of evidence? and does the evidence warrant the judgment? The firm of D. Cross & Sons were operating a flouring mill, and in proof that plaintiff in error was a partner therein the court received testimony that he was in the active management of the mill, that he made deposits, drew checks, and paid drafts in the firm name; that he put money info the business; that he made improvements about the mill, and “talked much about what they were going to do: that a deed of one-third interest in the mill property was made to him some months prior to ^ execu^on Qf not6j an(J that it was the common understanding and report in the community that he was a partner. The last is thé only testimony concerning which there can be any serious question. It seems to trespass on the rule which forbids hearsay testimony. An examination of the books shows that the authorities are conflicting. Thus, it was declared competent in Allen v. Rostram, 11 Serg. & Rawle, 373; Whitney v. Sterling, 14 Johns. 214; Gowan v. Jackson, 20 Johns. 176; Bernard v. Torrence, 5 Gill and Johns. 388. In some of these cases it was held to be competent only when received in connection with and corroborative of other evidence of the partnership; and such seems to be the views of Prof. Greenleaf, 2 Greenl. Ev. §483. See also Turner v. McIhaney, 8 Cal. 575; Carlton v. The L. W. Mill, 27 Vt. 296. Other authorities declare it incompetent under any circumstances. Brown v. Crandall, 11 Conn. 92; Halliday v. McDougall, 20 Wend. 88; Halliday v. McDougall, 22 Wend. 264; Sinclair v. Wood, 3 Cal. 98; Earl v. Hurd, 5 Blackford, 248; Inglebright v. Hammond, 18 Ohio, 337; Hicks v. Cram, 17 Vt. 449; Scott v. Blood, 16 Maine, 192; Bowen v. Rutherford, 60 Ill. 41. In support of the testimony, it may be remarked, that one who is not a member of a firm may make himself liable to a third party as a partner therein, if he permits himself to he held out as a partner, or if his acts and conduct are such as fairly and justly to induce the belief that he is a partner. In the latter case, the mere belief of the party is not sufficient. The acts and conduct must be such as are reasonably and fairly sufficient to justify such a belief. Proof that the community generally understands and believes him to be a partner, tends to prove that his acts and conduct have been such as naturally, fairly and reasonably create such a belief. It therefore supports the reasonableness of the party’s belief. In that light, it may perhaps, in some cases be competent testimony in connection with and corroborative of other evidence. In this case the officers of the bank testified that they supposed plaintiff in error was a partner.
Evidence was given of his acts and conduct tending to show him a partner. Does it not support the reasonableness of the officers’ belief, that the entire community were led by the same facts and circumstances to look upon him as a partner? But again, no grounds of objection were stated; and it is a general rule, that if a party does not state his grounds of objection the court is under no obligations to search for any. It is like an allegation of error without any specification of the supposed error. Walker v. Armstrong, 2 Kas. 199; Wilson v. Fuller, 9 Kas. 176; Luke v. Johnnycake, 9 Kas. 511; Marshall v. Shibley, 11 Kas. 114.
Did the evidence warrant the judgment? If the question were simply whether the plaintiff in error was a partner at the time of the execution of the note, we should have little hesitation, for while the testimony of plaintiff in error, and of S. K. Cross, one of the partners, is positive and clear that he was not, yet there was abundance of testimony, circumstantial it is true, but sufficient to show that he was a partner; and any mere conflict of testimony must, as we have over and over decided, be settled by the trial court. Taking out the testimony of the two Crosses, and a very strong case would remain. The plaintiff in error receives a deed of one- third the property, comes and assumes the active management of the business, puts money into it, makes deposits, draws drafts and checks in the name of the firm, makes improvements in the property, and so acts in reference to the business and property that the community generally consider him a partner. Surely this is ample to support a finding that he was a partner. And it concludes this court upon the question. K. P. Rly. Co. v. Kunkel, ante, 146. But the point of difficulty lies in the fact that the loan for which this note was given was originally made several months prior to the time at which it is claimed plaintiff in error j0jne(j tiie firm, and it is said that an incoming partner is not liable for a prior debt of the firm without a special promise. As Chancellor Kent says, in vol. 3 of his Commentaries, page 36, “It is a general and well-established principle, that when a person joins a partnership as a member, he does not, without a special promise, assume the previous debts of the firm, nor is he bound by them.” In reference to this, these facts appear: The firm of D. Cross & Sons was in existence at least as far back as 1871, and engaged in the flouring-mill business. The firm then consisted of D. Cross, S. K. Cross, and Thomas Cross. In the spring of 1872 the firm borrowed $3,500 of the bank, and gave their sixty-day note therefor. The loan was continued by renewals of the note until February 26th 1873, when the note in controversy was given. In the summer of 1872 Thomas Cross went out of the firm; and in the fall of 1872, as claimed, plaintiff in error became a partner. The name of the firm was not changed. Now while an incoming partner does not by the mere fact of joining the firm become liable for its prior debts, yet he may assume such liability, and it is a question of fact whether he did so. And very slight testimony, the books say, will be sufficient to show that he did. Thus, in Ex parte Jackson, 1 Vesey Jr. 131, Lord Thurlow said: “If any interest had been paid upon that bond by both, I should have considered it as adopting the debt, and making the partnership liable for it. * * * If one man, having debts, takes another into partnership with him, a very little matter respecting those debts will make both liable.” And.in Parsons on Part., §435: “Whether the new incoming partner has assumed the old debts, is sometimes a difficult question of law and fact. It certainly may be implied by circumstances. And what circumstances should in any one case imply it, is a question partly for the court, and partly for the jury. Paying of interest on a debt, or a knowledge without objection that the new firm pays the interest, would warrant a jury in finding such an assumption of the old debt. And perhaps any single fact of a like kind would have the same effect.” See also, Story on Part., §§ 152, 153; Updike v. Doyle, 7 R. Island, 447; Ex parte Peele, 6 Vesey Jr. 601; Ex parte Williams, Buck, 16; Ex parte Freeman, Buck, 474. And there is manifest justice in this. Where one joins a partnership, as in this case, he makes himself a part of an entity already existing, which has acquired certain property and business, and in acquiring it has incurred certain indebtedness. The firm owns the property, holds the business, and owes the debts. He becomes one of that firm. Should it require much evidence to show that in entering that firm he identifies himself fully with it, becomes in all respects a part of it, and shares in its obligations as well as in its property and business? It is true, that as to the other partners, there is a rearrangement of interests. But as to the property and business, it is a continuous thing. When one buys a share in a corporation, he buys an interest subject to debts. And while there is not the same legal obligation in entering a firm, there is much of practical similarity. Applying that rule to this case, we must sustain the judgment. The plaintiff in error knew of the existence of this debt. The interest on it was, without any objection by him, charged up to the firm by the bank, and entered in its passbook. Thus appears the very matter specified by Parsons as sufficient to warrant a finding of the assumption of the debt. Again, while he did not sign the mew note, and was not present when it was signed, he knew that the bank was seeking a renewal, and made no objection to it. The note was executed in the name of the firm, and was prima fade therefore binding on all the members of the firm at the time of its execution. It was a negotiable promissory note, at ninety days. It was such a note, as, so far as anything in the record shows, he would naturally expect a bank to take. Eor banks, as every one knows, as a rule, ask negotiable paper. Negotiated for value before due, it would be good against all those who were members of the firm at the date of its execution. With this before him, he gives no caution to the bank, and makes no objection to the renewal. After all, there is but a question of fact in regard to the partnership, and the assumption of the partnership debts; and being but a question of fact, it is a matter for the determination of the trial tribunal. And as there was ample testimony to sustain its finding, we must affirm it, although the testimony of the two Crosses is plain, direct and positive against it.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
In the fall of 1873, Maltby made a contract with Eisenhauer to deliver to said Eisenhauer at his brickyard one hundred cords of wood. About the time the contract was made Eisenhauer gave Maltby an order on Ober & Bond, merchants at Salina, for goods, which was in part payment of the wood to be delivered. Goods were thus drawn on Eisenhauer’s account to the amount of $112.50 before any wood was delivered, and no goods were so drawn thereafter. After Maltby began the delivery of the wood, Eisenhauer denied thd contract-price as claimed by Maltby, and said he would not pay it. Maltby then hauled what he supposed would be sufficient to pay for the goods he had drawn, and stopped without saying anything to Eisenhauer. No request was made for the balance of the wood, and no more was delivered. Eisenhauer claimed that the wood delivered did not pay for the goods obtained on the order, and brought this action to recover from Maltby the balance. The jury gave a verdict for the plaintiff for $4.50, and judgment was entered for that amount, and the costs. To reverse that judgment this proceeding in error (is brought.
The errors complained of are in the instructions. The court charged the jury to allow plaintiff for the goods, and defendant for the wood delivered, and for $10 cash paid by him to Ober & Bond to apply on the account, and not to allow any damages for the breach of the contract, saying, that “the contract seems to be treated as at an end by both parties.” It is of this that counsel complain, and say that the court should have given certain special instructions, one of which was to the effect that plaintiff, by denying the contract-price, and saying that he would not pay it, was guilty of a breach of the contract, and that defendant was justified in then treating it as broken, and was entitled as damages for the breach to the difference between the contract-price and the market-value. To what extent a contract may be held to be broken before the time of performance arrives, may not be entirely settled. There are authorities which say that, if, before the time of performing the contract arrives, the promisor expressly renounces the contract, the promisee may treat this as a breach and may at once maintain an action in respect thereof. Crabtree v. Messersmith, 19 Iowa, 179; Halloway v. Griffith, 32 Iowa, 409; Hochster v. De Latour, 20 Eng. L. & Eq. 157; Damba Rly. Co. v. Xenos, 103 Eng. C. L. (or 11 C. B., n.s.) 152; 106 Eng. C. L. (or 13 C. B., n.s.) 825; L. R., 7 Ex. 218; Frost v. Knight, 5 Albany Law Journal, 235; Burtis v. Thompson, 42 N. Y. 246; Dugan v. Anderson, 36 Md. 567; Lamoreaux v. Rolfe, 36 New Hamp. 33. Several of these cases were for breaches of contracts to marry, and the courts in .many express themselves qualifiedly, and as doubtful whether the proposition was correct as applicable generally to all classes of contracts. But be the proposition ever so sound, we think it not applicable here. There was no absolute renunciation of the contract, but rather a dispute as to its terms. Plaintiff did not deny contracting for, or refuse to take the wood, or to pay therefor. He did deny that he had contracted to pay $4 a cord, and did say that he would pay but $3.50. Now it occurs to us that it would be carrying the doctrine of these authorities very far to apply it to every case of a dispute about one of the terms of a contract. More than that, we think the defendant’s own testimony warranted the court in its instructions. He testifies that after the plaintiff had notified him that he would pay but $3.50 per cord, he continued to deliver wood. He says he continued to deliver until he had delivered what he thought was enough to pay for the goods he had obtained, but he said nothing as to his intentions, and delivered wood after the notice, as before. And for the wood thus delivered he claims the contract-price. In other words, he abides by the contract, after the notice, so far as he deems necessary to pay for what he has received. And indeed, both parties treat the contract as continuing, for the one delivers, and the other receives the wood; and this, without any new arrangement between them, and without an intimation by defendant that he is not on his part carrying out the contract.
What price was the defendant entitled to receive for the wood delivered after the notice? Suppose wood had fallen to two dollars a cord: could the plaintiff have refused to pay more? or, if it had gone up to eight dollars, could defendant have recovered that? It seems to us not. We think that the wood was delivered under the contract, and that the contract-price must control.
Again, when the time for delivering the wood had passed, hearing that plaintiff was about to sue for the goods delivered, defendant sends to him $8.50 to make up the difference between the goods and the wood, and when plaintiff refuses to receive it defendant pays Ober & Bond $10 to apply on the account. This certainly seems inconsistent with the idea of a right to damages for breach of the .contract. He says of this, himself, that he delivered 26 cords at $4 per cord, amounting to $104; that when he found the account was $112.50 he sent the $8.50 to pay the difference, and when that was refused by plaintiff he paid Ober & Bond $10, and paid them that amount because he heard that plaintiff claimed some interest, and he wanted to avoid a lawsuit if he could. Still again, defendant testified in so many words, that he gave up the contract. This is his language: “After we had the conversation in which he said he would pay $3.50 per cord, I hauled the rest of the 26 cords because I wanted to put in wood for what I had got. I hauled no more for the reason that I did not want to take the risk of getting my pay, and so let the contract go.” Tt would seem from this that defendant had no just cause of complaint if the court held that both parties treated the contract as at an end.
In support of the verdict, it should be stated that plaintiff claimed that only 20^- cords of wood were delivered, and that there was a conflict of testimony as to the amount actually delivered. We think these considerations also dispose of the other questions raised in the brief of counsel, and the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Wertz, J.:
This action was brought by Sunflower Tip Top Dairies Co. (plaintiff-appellee) to enjoin the enforcement of ordinance No. G-158 passed by the City of Junction City (defendant-appellant), which ordinance established certain license or regulatory fees to be paid by milk producers and distributors whose milk is sold or offered for sale within the city.
Prior to January 1, 1961, the plaintiff sold milk in Junction City under a license issued by the defendant city. On December 19, 1961, the city adopted ordinance No. G-158, a comprehensive milk ordinance. The pertinent portions applicable to the questions involved in the instant case provided for milk producers and distributors to pay a specific fee and obtain a license as a prerequisite to the sale and distribution of milk within the city. The ordinance specifically provided no license would be issued to a distributor until an annual fee of $425 was paid in advance to the city as actual cost of services performed in determining that such milk met the bacterial, butterfat, temperature and coliform standards provided by law.
On December 27, 1961, plaintiff received a letter from the city clerk advising it was necessary for plaintiff to purchase an annual license for the regulating of milk and milk products as prescribed by the ordinance. On January 16, 1962, plaintiff, by letter, requested the city to issue the license to it for the sale and distribution of milk products in the city of Junction City and bill plaintiff on a monthly or quarterly basis for the actual cost to the city for the tests determined necessary under the provisions of G. S. 1961 Supp., 65-738 and 65-739, inasmuch as the fee for inspection could not be estimated in advance but must be billed on the basis of actual cost of such service.
At the trial the city admitted that the fee established for the year 1962 by the ordinance was an estimate of the actual cost of inspection based upon its actual cost in prior years. The plaintiff presented no competent evidence that the license fee was excessive nor that it did not represent the actual cost of the services rendered in making the inspection set forth in the mentioned statute.
The trial court found, in substance, that the ordinance violated the provisions of G. S. 1961 Supp., 65-739 in that the $425 license fee fixed by the ordinance was based on an estimated cost and not the actual cost of inspection services and was, therefore, void and inoperative. The court further found that section 65-739 violated no rights of the defendant city guaranteed it under the federal or state constitutions. The court permanently enjoined the city from enforcing the provisions of its ordinance, and assessed the costs, including attorney fees, against the city. From an order overruling its motion for a new trial, the city appeals.
G. S. 1961 Supp., 65-738 provides:
“Grade A raw milk . . . grade A pasteurized milk, . . . which have been inspected by a state agency or by a political subdivision of this state, and which have been designated grade A, may be moved, distributed, or sold, any place in this state, and any further inspection by any political subdivision of this state shall be prohibited: Provided, The duly authorized official of any political subdivision of this state may take samples of such products which have been moved into, distributed within, or sold within, the boundaries of such political subdivision of this state, for the sole purpose of determining that such products meet the bacterial, butterfat, temperature and coliform standards prescribed in the milk code or the requirements as established by article 7, of chapter 65, of the General Statutes of 1949, as amended and supplemented, and rules and regulations adopted thereunder or under section 75-1401 of the General Statutes of 1949: . . .”
G. S. 1961 Supp., 65-739 provides:
“Any political subdivision of this state imposing a license or regulatory fee, for the service performed in making bacterial, butterfat, temperature and coliform determinations of grade A raw milk . . . moved into, distributed within, or sold within its boundaries, shall not be permitted to fix any such charge in excess of the actual cost of such service; and it shall not be permitted to impose any other charge or license against such products, or against any person, as a prerequisite for such products to be moved into, distributed within, or sold within its boundaries.”
The primary question presented here is whether or not the provision of the ordinance providing for the fee is void inasmuch as it is based upon the estimated cost as determined by the city. We are cited to no authority by either party on this question. Under the provisions of section 65-739 the city is empowered to impose a license or regulatory fee for the services performed in making certain specified tests of grade A milk moved into and distributed or sold within its boundaries, and such city shall be permitted to fix a charge not in excess of the actual cost of such service as a prerequisite to the issuing of the license or permit. By the use of the word “fix” the statute presupposes the city may estimate the actual cost of the services rendered under the statute and that the fee shall be payable in advance. In fixing such charge it is inherent in the statute that the fee for such service may be estimated, based upon either past experience for such service or contemplated actual cost. If in adopting the ordinance the city acted without practical experience to guide its judgment, and the fee so assessed was either inadequate or excessive, then the city, after experience demostrates the inadequacy or excessiveness of the fee, should alter it accordingly.
We are cited to no authority requiring a state or political subdivision thereof to perform a public service such as the one in question in the instant case before it can exact a fee to cover the costs involved. Such procedure would undoubtedly make it impossible, due to lack of funds, for the agency responsible to perform the service in advance, and would be administratively unsound.
The record is void of any competent evidence that tire fee assessed by the city was not the actual cost of making the inspection as provided by the statute or that it was unreasonable, excessive, arbitrary or unjust. The ordinance clearly complies with the provisions of section 65-739.
We are of the opinion the trial court erred in holding the ordi nance was unenforceable for the reason the fee assessed was based on an estimate of the actual cost of the services to be rendered.
It is contended section 65-739 violates article 12, section 5 of the state constitution. It must be conceded the constitutional provision confers on cities the power to determine their local affairs, including the levying of taxes, except when such tax is limited or prohibited by enactment of the legislature applicable uniformly to all cities of the same class. It is elementary that section 65-739 places a limitation on the city of Junction City from imposing a tax on milk except for the purpose therein specified and that the statute is applicable uniformly to all cities in the state. Therefore, the statute does not violate article 12, section 5 of the state constitution.
It is further contended section 65-739 is invalid in that the term “actual cost” is not defined. There is no merit to this contention. The statute clearly limits the authority of the city to take samples of the milk moved into the city for sale for the sole purpose of determining that the product meets the bacterial, butterfat, temperature and coliform standards prescribed by the statute and limits the regulatory fee thereto. In other words, the statutes limit the cities to (1) the right to take samples for specific tests, (2) the right to perform the testing service and (3) the right to impose a fee which must not exceed the actual cost of such service.
In view of what has been said, we are of the opinion the trial court did not err in upholding the validity of G. S. 1961 Supp., 65-739, and that portion of the judgment is affirmed. The remainder of the trial court’s judgment is reversed and the case is remanded with directions to the trial court to set aside its judgment, except as aforementioned, and to grant a new trial on the remaining issues raised in the injunction action.
It is so ordered.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action for a declaratory judgment to construe the terms of a written contract for the sale of several oil and gas leases. The defendant has duly perfected an appeal from a judgment decreeing that the plaintiffs are the owners of a l/7th of 7/8ths overriding royalty interest in the oil and gas leases and ordering the defendant to account to the plaintiffs therefor.
The question is whether the plaintiffs’ overriding royalty interest reserved in the contract of sale continued during the entire life of the leases or whether such interest terminated when H. K. Dougherty, the original assignee, ceased operating these particular oil and gas leases.
The facts pertinent to the issue in this case are not in dispute. They have been established either by stipulation or admission of the parties.
On January 26, 1939, the plaintiffs, Weiner and Kienzle, were the owners of a 7/8ths working interest in five oil and gas leases located in Neosho County, Kansas. On that date they entered into a written contract with H. K. Dougherty granting him the option for ninety days to purchase said leases and appurtenant equipment, and the right to investigate the property and to drill test wells. The contract further fixed the purchase price and method of payment in the event the option was exercised.
The principal issue in this case involves the construction of the-last sentence in paragraph 3 (c) of the written contract. This, paragraph, in its entirety, provides as follows:
“Weiner and Kienzle shall except and reserve from said assignments covering the leased lands an undivided one-seventh (l/7th) interest in all oil and gas produced and saved from the 7/8ths working interest in said leases, hereinafter referred to as the overriding royalty interest; and Dougherty shall deliver or cause to be delivered to the pipe lines to which said leases are connected an undivided l/7th of the 7/8ths working interest in such oil or gas as may be produced and saved and sold from said leases free and clear to Weiner and Kienzle of all cost and expense (except taxes assessable against the overriding interest and the production therefrom); provided that Dougherty shall have the right to use crude oil and gas produced from the herein demised premises for his operations on said premises, such oil and gas so used to be free of overriding royalties under the terms of this agreement. This overriding royalty interest shall continue so long as Dougherty operates the properties hereunder.” (Emphasis added.)
The written contract further provides that Dougherty, in the event of his intention to abandon any of the leases after two years because of nonprofitable operation, shall give notice of such intention to Weiner and Kienzle, who shall have the preferential right of repurchase.
The last paragraph o£ the written contract provides:
“9. It is further agreed that all the terms, covenants, stipulations and agreements herein contained shall extend to and bind the heirs, executors, administrators, successors and assigns of the respective parties.”
On April 20, 1939, a modification of the written contract was entered into between the parties, in which the method of payment, but not the amount, was changed, and in which paragraph 3(b) was deleted from the contract. Neither modification is material to this controversy.
On April 24, 1939, and within the ninety-day option period, Dougherty exercised the option.
At all times from and after January 26, 1939, Weiner and Kienzle were apprised by Dougherty that he (Dougherty) was acting as the agent for Hugh Grant, Bradford, Pennsylvania, doing business under the name and style of Kirby Oil Company, and that Dougherty was not performing solely for himself or for an undisclosed principal.
On June 15, 1939, Weiner and Kienzle, pursuant to the terms of the contract, assigned said leases to Dougherty, in the form of an assignment attached to the contract, in which Weiner and Kienzle reserved the following interest:
“. . . save and except that the undersigned hereby reserve and except to themselves, their heirs and assigns, an undivided one-seventh (1/7) of the oil and gas produced, saved and sold from the 7/8ths working interest of the leases hereby assigned, free and clear of all cost and expense, save taxes, all subject to the terms and conditions of the agreement dated January-, 1939, between the parties hereto concerning the aforesaid leases.”
On June 16, 1939, effective June 17, 1939, Weiner, Kienzle and Dougherty executed and delivered to the oil purchaser their transfer orders setting over to Dougherty the proceeds from the oil produced and sold under 6/7ths of the 7/8ths working interest.
On July 8, 1939, Dougherty assigned said leases to the Kirby Oil Company. The assignment contained the following special provisions:
“But subject to the reservation and exception of an undivided 1/7 of the oil and gas produced, saved and sold from the 7/8 working interest of the aforesaid leases, free and clear of all cost and expense save taxes, reserved by Carl Weiner and John G. Kienzle in the Assignment of the aforesaid oil and gas leases by them to H. K. Dougherty dated June 15, 1939, recorded in Book 24M, page 448, reference to which is hereby made for the terms thereof; and also subject to the terms and conditions of the Contract dated January 26, 1939, between Carl Weiner and John G. Kienzle as first parties and H. K. Dougherty as second party as modified by supplemental contract dated April 20, 1939, between the same parties concerning the aforesaid leases; and also subject to the mortgage dated June 15, 1939, from H. K. Dougherty as mortgagor to Carl Weiner and John G. Kienzle as mortgagees covering the above described property and given to secure the sum of $22,500.00.
"That for the same consideration, and as a part hereof, the Assignor, H. K. Dougherty, hereby assigns to Kirby Oil Company the said Contract of January 26, 1939, and the said Supplemental Contract of April 20, 1939, and all rights thereunder, between Carl Weiner and John G. Kienzle and H. K. Dougherty with respect to the aforesaid leases; and the Assignee, Kirby Oil Company, hereby assumes all of the obligations thereof, and agrees to perform the same according to the terms and conditions and the tenor thereof; and the Kirby Oil Company assumes the payment of said mortgage for $22,500.00 and the indebtedness secured thereby; and the Kirby Oil Company shall save the assignor free and harmless of any and all loss or liability that may arise under, out of, or in connection with said contract as modified and said mortgage.”
This assignment was duly recorded on July 17, 1939.
On July 11, 1939, effective July 1, 1939, Dougherty and Kirby Oil Company executed and delivered to the oil purchaser their transfer orders setting over to Kirby Oil Company the proceeds from the oil produced and sold under 6/7 of the 7/8 working interest.
On July 1, 1944, Kirby Oil Company assigned said leases to Grant & Mohan Oil Company, which assignment contained the exact special provisions above quoted. This assignment was duly recorded on September 21,1944.
In June and August, 1944, effective July 1, 1944, Kirby Oil Company and Grant & Mohan Oil Company executed and delivered to the oil purchaser their transfer orders setting over to Grant & Mohan Oil Company the proceeds from the oil produced and sold under 6/7ths of the 7/8ths working interest.
On January 15, 1945, Grant & Mohan Oil Company assigned said leases to Frank Young. The assignment contained the following special provisions:
. . But subject to the reservation and exception of an undivided 1/7 of the oil and gas produced, saved and sold from the 7/8 working interest of the aforesaid leases, free and clear of all cost and expense save taxes, reserved by Carl Weiner and John G. Kienzle in the Assignment of the aforesaid oil and gas leases by them to H. K. Dougherty dated June 15, 1939, recorded in Book 24M, Page 448, reference to which is hereby made for the terms thereof; and also subject to the terms and conditions of the Contract dated January 26, 1939, between Carl Weiner and John G. Kienzle as first parties and H. K. Dougherty as second party as modified by supplemental contract dated April 20, 1939, between the same parties concerning the aforesaid leases.
"That for the same consideration, and as a part hereof, the Assignor, Grant & Mohan Oil Company, hereby assigns to _ the said Contract of January 26, 1939, and the said Supplemental Contract of April 20, 1939, and all rights thereunder, between Carl Weiner and John G. Kienzle and H. K. Dougherty with respect to the aforesaid leases; and the Assignee,_ hereby assumes all the obligations thereof, and agrees to perform the same according to the terms and conditions and the tenor thereof.”
This assignment was duly recorded on March 19,1945.
In January, 1945, effective January 15, 1945, Grant & Mohan Oil Company and Frank Young executed and delivered to the oil purchaser their transfer orders setting over to Frank Young the proceeds from the oil produced and sold under the 3/4ths working interest (being the same as 6/7ths of 7/8ths working interest).
On November 15, 1946, Frank Young assigned said leases to C. L. Keas and Kenneth C. Keas, partners, d/b/a Keas Drilling Company, which assignment contained the exact special provision last above quoted. This assignment was duly recorded on November 29, 1946.
On November 16, 1946, effective November 16, 1946, Frank Young and Keas Drilling Company executed and delivered to the oil purchaser their transfer orders setting over to Keas Drilling Company the proceeds from the oil produced and sold under the 3/4ths working interest.
On October 1, 1955, C. L. Keas and Kenneth C. Keas, partners, d/b/a Keas Drilling Company, assigned said leases to Keas Drilling Company, Inc. This assignment was duly recorded on November 30,1955.
It should perhaps be noted, as a matter of clarification, that during the month of November, 1958, one of the five leases here involved was abandoned and no further production was had from it. However, the four remaining leases have continued to produce.
On November 15, 1961, Keas Drilling Company, Inc. assigned the entire 7/8ths working interest in and to said leases to Wilshire Oil Company of Texas, defendant (appellant) “subject to the rights of Carl Weiner and John G. Kienzle, ... if any.” This assignment was duly recorded on December 5,1961.
Wilshire entered into possession of the leases in December, 1961, continued its operation, and retained and continues to retain the proceeds from oil produced and sold under the entire 7/8ths working interest.
Plaintiffs, on April 18, 1962, filed this action for a declaratory judgment, seeking a decree that they were and are entitled to the proceeds from l/7th of 7/8ths of the oil produced, saved and sold from said leases.
Execution and delivery of the several assignments and transfer orders as heretofore noted were admitted by the parties and accepted in evidence, but their materiality was not conceded. Weiner and Kienzle waived any objection to materiality and competency. No parol testimony was presented to the trial court.
Weiner and Kienzle admitted that Dougherty was no longer the operator of the leases — “that he may have operated for some period of time for a principal after his assignment to the Kirby Oil Company in July, 1939, but the plaintiff [s] did not have any information as to the exact date he ceased his actual operation for a principal.”
On July 11, 1962, the trial court entered judgment in favor of plaintiffs, decreeing that plaintiffs’ l/7th of 7/8ths overriding royalty in the oil and gas leases is in full force and effect, and that defendant should account to plaintiffs therefor.
Defendant’s motion for new trial was duly filed and was overruled. Appeal has been duly perfected.
Subsequent to the filing of an appeal in this court Kienzle died and the action was revived in the name of Howard Bowker, the administrator of his estate.
In actions founded upon written instruments, where the rights of parties relative to the terms thereof are in controversy, certain fundamental legal concepts permeate the law, and with minor variations it matters not whether the instrument be a contract, a deed or a will.
The doctrine has been well established and frequently applied that where parties have carried on negotiations, and have subsequently entered into an agreement in writing with respect to the subject matter covered by such negotiations, the written agreement constitutes the contract between them and determines their rights. (Arensman v. Kitch, 160 Kan. 783, 789, 165 P. 2d 441; Hudson v. Riley, 104 Kan. 534, 539, 180 Pac. 198; Hudson State Bank v. Haile, 130 Kan. 322, 286 Pac. 228; Grantham v. Hanenkratt Lead & Zinc Co., 131 Kan. 535, 542, 292 Pac. 757; Continental Supply Co. v. Morgan, 133 Kan. 121, 123, 298 Pac. 790; and McKay v. Clark, 162 Kan. 653, 659, 178 P. 2d 679.)
It is a judicial function to interpret a written contract which is free from ambiguity and does not require oral testimony to determine its meaning. Ambiguity in a written instrument does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning. (Klema v. Soukup, 175 Kan. 775, 267 P. 2d 501.) If a written contract is actually ambiguous concerning a specific matter in the agreement, 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 varying and nullifying its clear and positive provisions. (Maltby v. Sumner, 169 Kan. 417, 219 P. 2d 395; Oliver v. Nugen, 180 Kan. 823, 308 P. 2d 132; Custom Built Homes Co. v. State Comm. of Rev. and Taxation, 184 Kan. 31, 334 P. 2d 808; and Dearborn Motors Credit Corporation v. Neel, 184 Kan. 437, 337 P. 2d 992.)
In placing a construction on a written instrument reasonable rather than unreasonable interpretations are favored by the law. Results which vitiate the purpose or reduce the terms of the contract to an absurdity should be avoided. The meaning of a contract should always be ascertained by a consideration of all the pertinent provisions and never be determined by critical analysis of a single or isolated provision. (Tate v. Stanolind Oil & Gas Co., 172 Kan. 351, 240 P. 2d 465; Brooks v. Mull, 147 Kan. 740, 78 P. 2d 879; and Heckard v. Park, 164 Kan. 216, 188 P. 2d 926. It is not the province of the court to make contracts for the parties. Its function is confined to an interpretation of the contract which the parties have entered into. Every presumption is in favor of the legality of a contract rather than its illegality. (Mosher v. Kansas Coop. Wheat Mkt. Ass'n., 136 Kan. 269, 15 P. 2d 421; and Geier v. Eagle-Cherokee Coal Mining Co., 181 Kan. 567, 313 P. 2d 731.)
Prior to a resort to extrinsic evidence, the instrument is to be interpreted from its “four corners.” That is to say, all the language used anywhere in the instrument should be taken into consideration and construed in harmony with other portions of the instrument. (Skelly Oil Co. v. Cities Service Oil Co., 160 Kan. 226, 231, 160 P. 2d 246; Heckard v. Park, supra; and Smith v. Russ, 184 Kan. 773, 339 P. 2d 286.)
Are the contract and assignment ambiguous on the question of the duration of the overriding royalty interest?
Two portions of the contract seem to apply: (a) “This overriding royalty interest shall continue so long as Dougherty operates the properties hereunder;” and (b) “all the terms, covenants, stipu lations and agreements herein contained shall extend to and bind the heirs, executors, administrators, successors and assigns of the respective parties.”
The appellant (Wilshire) in the instant case contends the written contract is clear and unambiguous. It argues provision (a) above contemplates the actual operation of the leases by Dougherty; that any other construction would render this phrase meaningless; and that the appellees have admitted Dougherty no longer operates the properties. Accordingly, it is argued, the appellees’ interest has terminated. (Citing Smith v. Holmes, 181 Kan. 438, 312 P. 2d 228.)
The trial court found the contract and assigment not to be ambiguous, and in its memorandum, among other things, said:
“My decision is made with all the above principles in mind and by applying the fundamental rule that the instruments must be read in their entirety to determine their intention and legal effect, from the four comers, as courts have said, and considering all portions together. I have no hesitancy in holding that the overriding royalty reserved to plaintiffs is effective so long as Dougherty and his assigns operate the properties under the leases. Inasmuch as the contracts are specifically made assignable and the first paragraph of each instrument contains the recital, ‘party of the second part, hereinafter referred to as Dougherty’, the name Dougherty is simply an identification, and all references to him throughout the contracts apply fully to his assignees, as Paragraph 9 of the original contract states in unmistakable terms.”
The appellees adopt the reasons set forth by the trial court in its finding that the contract is not ambiguous, and that the overriding royalty interest is a continuing one. They contend, however, that they are not bound to adopt a theory or contention that the contract and assignment are or are not ambiguous; that:
“. . . The question of ambiguity goes to the test of materiality of evidence offered outside the terms of the instruments themselves, such evidence being material if the court first finds the contract and assignment to be ambiguous, and being immaterial if the court first finds the contract and assignment to be not ambiguous. The means employed by the court to determine the intention of the contracting parties varies according to the prior determination by the court of the absence or presence of ambiguity in the terms of the contract and assignment.”
When the “four comers” rule is applied to determine the intention of the parties to the contract and assignment herein, it leads to the conclusion that the overriding royalty interest reserved extends to the assigns of the contracting parties, in accordance with the reasons set forth by the trial court. Obviously, Dougherty had the right under the contract to assign and remove himself absolutely from any connection with the leases, and he could have done so the day following the assignment of the leases to him pursuant to the contract. Was it within the contemplation of the parties that the overriding royalty interest could be so easily terminated?
Can it be successfully argued that Dougherty’s personal operation of the leases was a condition necessary to the continued existence of the overriding royalty interest, when other provisions relating to obligations of payment for the balance of the purchase price, the giving of notice of intention to abandon the leases for nonprofitable operation, and the payment of gross production taxes all extended to the assigns of Dougherty?
In the court’s opinion the foregoing questions must be answered in the negative. Application of the foregoing rules to the written contract and the assignment of the leases to Dougherty lead to the conclusion that there is no ambiguity in the written instruments— that the overriding royalty interest reserved to Weiner and Kienzle is binding upon Dougherty and his assigns.
The appellant’s contention that the language “so long as” creates a base or determinable fee (citing authorities), has no application. Cases relied upon by the appellant disclose that in each instance the instrument was a conveyance of oil and gas in place and real property law was applied. In the instant case, the subject matter is an overriding royalty interest, the right to receive money, a chose in action, and not an interest in real property. (Connell v. Kanwa Oil, Inc., 161 Kan. 649, 170 P. 2d 631; and Denver National Bank v. State Commission of Revenue & Taxation, 176 Kan. 617, 272 P. 2d 1070.)
The judgment of the lower court decreeing the appellees’ undivided l/7th interest in all oil and gas produced and saved from the 7/8ths working interest in the oil and gas leases, known as an overriding royalty, to be in full force and effect, thus calling for the appellant to account to the appellees therefor, is affirmed.
Jackson and Fontron, JJ., not participating. | [
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|
The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from an order setting aside a temporary restraining order and denying injunctive relief.
The facts necessary for a determination of the appeal may be abbreviated.
Plaintiff filed an action to restrain the defendants, the Reno Construction Company, Inc. and James Watson, its superintendent, from trespassing on, and damaging, certain tracts of land owned or leased by the plaintiff, in the construction of a state highway. The tracts are located near the city of El Dorado, Kansas. The construction was for the purpose of relocating portions of State Highway K-13.
In the absence of the judge of the district court, the judge of the probate court granted a temporary restraining order on May 9, 1962. On May 10, 1962, the defendants filed an application to vacate the temporary restraining order. On the same day the State Highway Commission filed a motion for permission to intervene and be made a party defendant.
The motion stated in part:
“Plaintiff is attempting to enjoin the defendant Reno Construction Company, Inc., which is a true contractor with the State Highway Commission of Kansas, and its Superintendent, James (Jim) Watson, from proceeding with and completing a project for the Highway Commission of the State of Kansas, and to interfere with the legal right of the Highway Commission of the State of Kansas to complete a project which arises out of its condemnation of land for highway purposes, being Case No. 25,847 in this Court, from which the plaintiff has appealed, and that its rights and interests in and to the real estate described in said condemnation proceeding are affected by this proceeding.”
On May 12, 1962, the plaintiff filed a motion for a temporary injunction. The court set the motions and application for hearing May 14,1962, at which time it granted the motion for leave to intervene and the case was also tried on its merits. On May 15,1962, the district court made a determination of the action upon the merits, and also made a determination of the motions and application. The judgment of the district court reads:
“1. That the demurrer of all defendants to the evidence produced by Plaintiff herein shall be and the same is hereby overruled.
“2. That the Temporary Restraining Order herein issued on 9 May, 1962, by the Probate Court of Butler County, Kansas, in the absence from the County of the District Judge, shall be and the same is hereby vacated, and set aside.
“3. That Plaintiff’s application for a Temporary Injunction and Permanent Injunction herein shall be and the same are hereby denied.
“4. That the said Action shall remain on the docket of the above entitled Court as an action in damages by plaintiff against defendants in order that the Court may hear evidence pertaining thereto and award to the plaintiff and against the defendants such damages, if any, as plaintiff may be entitled to under the facts and circumstances; That the respective parties may file such supplemental pleadings as will place said matter in issue for such further consideration by the Court.
“5. That the oral motion of plaintiff herein for an order of the Court setting the amount of a supersedeas bond to be provided by plaintiff to stay the orders of the Court herein made pending appeal by said plaintiff shall be and the same is hereby denied.”
Plaintiff has appealed from the trial court’s judgment vacating the temporary restraining order and denying injunctive relief.
We are first confronted with appellees’ motion to dismiss the appeal for the reason that the issues involved in the injunction proceedings are moot. The motion to dismiss was accompanied by an affidavit which stated that all of the work on Highway K-13 at the point in controversy has been fully completed. The appellant so concedes.
The petition sought relief only in the form of injunction. This court is, by a long line of decisions, committed to the rule that a case will not be reviewed on its merits where only injunctive relief is sought and the need for that relief has ceased to be a justiciable issue.
In Diehn v. Penner, 169 Kan. 63, Syl. f j[ 1 and 2, 216 P. 2d 815, it was held:
“This court is committed to the rule that a question raised on appeal will not be considered and decided where it clearly appears that between the trial of the action and appellate submission of the question there has been a change of circumstances which would make any judgment it might render of no consequence to the particular issue litigated in the court below.
“Where, in an action brought solely for the purpose of restraining a township sewer district from utilizing a strip of land in the construction of a permanent sewer, the trial court sustains a demurrer to the plaintiff’s evidence and to his petition and renders judgment against him denying a temporary injunction, an appeal from the order sustaining the demurrer will be dismissed as moot when the parties concede that, since the rendition of the judgment, the sewer has been completed and the plaintiff’s land used in the construction of that improvement.” (See also, Bowling v. Moore, 139 Kan. 399, 32 P. 2d 247; Dickey Oil Co. v. Wakefield, 153 Kan. 489, 111 P. 2d 1113; Moore v. Smith, 160 Kan. 167, 160 P. 2d 675, and Williams v. City of Wichita, 184 Kan. 53, 334 P. 2d 353.)
An appeal should not be dismissed as moot if, by leaving the judgment stand, vital rights of the parties would thereby be affected. (Moore v. Smith, supra.)
The appellant admits that the State Highway Commission would have had a right to condemn the land involved in the controversy. The construction having been completed, the only relief left to the appellant is by way of damages. The district court has converted the action for injunction into one for damages “. . . in order that the court may hear evidence pertaining thereto and award to the plaintiff and as- against the defendants such damages, if any, as plaintiff may be entitled to under the facts and circumstances. . . .” This court has approved the procedure followed by the district court. (Provident Mut. Life Ins. Co. v. State Highway Comm., 155 Kan. 351, 125 P. 2d 346.)
No further or additional relief could be granted to plaintiff by a decision of this court. The construction having been completed, the injunction proceedings are moot.
The appeal is dismissed.
APPROVED BY THE COURT.
Jackson, J., not participating. | [
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|
The opinion of the court was delivered by
Parker, C. J.:
This appeal involves the construction of an insurance policy, designated as a “Garage Liability Policy.”
The construction, placed upon the policy by the district court, excluded plaintiff’s claim as to defendant’s liability and plaintiff has appealed.
The case was submitted to the lower court on a stipulated statement of facts which will be summarized.
Appellee issued a garage liability insurance policy to the appellant which included a physical damage supplement covering theft. The policy also contained an endorsement excluding theft under particular circumstances. The basic policy is not presented in the record.
The physical damage supplement to the policy contained a' schedule of coverages and spaces for the insertion of the amounts of premiums. On this schedule were typewritten the words “$25.00 See False pretense End. attached.” However, no false pretense endorsement was ever attached to the policy and no premium was paid for such an endorsement.
Subsequent to the issuance of the original policy containing the endorsements, and prior to the occurrence of the loss which is the subject matter of this action, a special endorsement was attached to the policy amending the schedule of coverage and premiums. The amended schedule showed the charge of $25.00 for “Dealers’ Supplemental Coverage” instead of for false pretense and no mention was made in the special endorsement of the false pretense endorsement.
A dealer’s supplemental coverage endorsement, insuring the appellant against malicious mischief or vandalism, was also attached to the policy.
The appellant did not pay the premium of $174.90, set out in the original schedule of premiums which included the charge for a false pretense endorsement, but did pay the $134.00 premium for the amended schedule of premiums which included coverage for malicious mischief of vandalism. This coverage was added to the original policy subsequent to its issuance.
Appellant was the owner of a 1960 Buick convertible automobile which was insured under the policy. The stipulation states:
“That on November 21, 1960, the plaintiff voluntarily surrendered mere custody of the insured vehicle to a Mr. Dockery although not surrendering possession of or title to the insured vehicle (as defined by law); and that thereafter said Dale Dockery committed a theft of the insured vehicle.
“That the insured automobile was recovered some months later with damage which included cigarette burns, blood stains, motor damage, tire cuts, broken glass, and body damage on all four quarters.”
The action was to recover the reasonable cost of repairs to the automobile in the amount of $700.00.
The first question presented is whether the exclusionary provision, in the special endorsement, excluded coverage for the theft under the facts as stipulated. The special endorsement attached to the policy contained the following exclusion:
“The Policy does not apply:
“Under any coverage, to loss resulting [1] from the insured voluntarily parting with title to or possession of any automobile, if induced to do so by any fraudulent scheme, trick, device, false pretense or [2] from embezzlement, conversion, secretion, theft, larceny, robbery or pilferage committed by any person entrusted by the ensured with custody or possession of the automobile.” (Numbers supplied to identify separate clauses.)
The appellant seeks to apply a strained and unusual construction to the sentence. He admits that the sentence contains two exclusions but in his brief suggests:
“Comparison of the two exclusions show in appellant’s opinion that coverage is afforded unless either one of two conditions exist, namely a voluntary parting by the insured with title to the insured vehicle or secondly the parting by him with possession of the insured automobile. The word ‘custody’ appearing in the instant exclusion is, . . ., merely a part of the adverbial clause, modifying the word ‘parting.’ Treating the instant exclusion as a complete sentence and reducing it to its basic idea, it reads as follows: ‘The policy does not apply to loss resulting from insured’s parting with title or possession of automobile.’ ”
The appellant ignores the fact that the words “or from” separate the two parts of the sentence in the disjunctive. The co-ordinating conjunction “or” introduces and connects the second clause of the introductory phrase “the policy does not apply under any coverage to loss resulting . . .” The second clause is entirely independent of the first.
Insofar as here material the exclusion states, “The policy does not apply: Under any coverage, to loss resulting from . . ., theft . . ., committed by any person entrusted by the insured with custody ... of the automobile.”
Appellant's construction would render the second clause meaningless. An owner of an automobile does not part with title as the result of conversion, theft, larceny, robbery, etc.
Appellant directs our attention to Motor Co. v. Insurance Co., 111 Kan. 225, 207 Pac. 205, which holds that the action of a swindler who obtained an automobile by means of trick or artifice constituted “a species of theft for which the insurance company was liable.”; Tripp v. United States Fire Ins. Co., 141 Kan. 897, 44 P. 2d 236, which holds that the taking of an automobile by one who presented himself as a prospective purchaser constituted a theft; and Baker v. Continental Ins. Co., 155 Kan. 26, 122 P. 2d 710, holding that even a temporary taking of the insured vehicle constituted a theft under automobile policies insuring against theft.
The cases are not helpful here for two reasons. First, the record does not inform us of the nature and purpose of the thief’s custody of the automobile. Second, it is admitted that there was a theft of the automobile. The question is whether theft by a custodian was excluded from the policy.
Appellant insists Tripp v. United States Fire Ins. Co., supra, supports his contention. That case is clearly distinguishable from the case at bar. In Tripp the exclusion excluded theft by a person to whom possession had voluntarily been surrendered. The court held that mere custody was not equivalent of possession and therefore theft by a mere custodian was not excluded. In the opinion the court stated:
“. . .; that plaintiff in letting Hanson drive the car to try it was not intending to and did not part with the possession of it; that had the insurance company wanted to make an exception with reference to change of custody resulting from fraudulent scheme, trick, device or false pretense, it could easily have used words so appropriate to that end there could have been no difference of opinion with respect thereto, and failing that, the terms of the exception must be construed against it and favorably to the plaintiff, and so construed, plaintiff did not voluntarily part with possession of die insured automobile.” (p. 900.)
In the instant case the insurer has done that which was suggested in Tripp, supra. It excluded theft by a person entrusted with custody in addition to excluding possession.
The cases of Pacific Indemnity Co. v. Harrison, (Tex. Civ. App.) 277 S. W. 2d 256; and Hanover Fire Ins. Co. v. Scroggs, 92 Ga. App. 548, 88 S. E. 2d 703, construed an exclusionary clause such as we have here, and held theft by a custodian to be excluded.
In Hanover Fire Ins. Co. v. Scroggs, supra, it was said:
“. . . While clauses in insurance contracts, where doubtful or ambiguous, should be construed most strongly against the insurer (citing cases), nevertheless unambiguous provisions should be given their plain and reasonable intendment, (citing cases). There is no ambiguity in the above quoted clause, and the contention that the words Voluntarily parting with both title and possession of any automobile’ are applicable to that part of the provision which begins ‘or from embezzlement, conversion,’ etc., is not tenable, not only because the word ‘or from’ separate the two parts of the sentence in the disjunctive, but also because to so interpret it would render the last part absolutely meaningless. One does not part with title as the result of conversion, theft, larcency, robbery, and so on.” (p. 550.)
Appellant also contends that false pretenses should have been covered by the policy. The stipulation of facts in connection with the subject states:
“. . .; that to this original policy was attached a “Physical Damage Supplement’ (A4562), insuring plaintiff’s vehicles from losses due to collision or upset, fire, lightning and transportation, and theft (Broad Form); . . .”
“That no false pretense endorsement was ever attached to said policy of insurance; . . .
“That on the foregoing Physical Damage Supplement (A4562) appeared a Schedule of premiums and coverages. The premiums appearing on this Physical Damage Supplement were $85.00 for coverage F, $25.90 for coverage G, $39.00 for Coverage H, and $25.00 alongside the words ‘See False Pretense End.’ Attached, ‘For a total premium of $174.90.’ No such false pretense endorsement was ever attached to the policy. Subsequent to the issuance of the above original policy and before November 21, 1960, a ‘Special Endorsement’ (A312) was attached to the policy and reads:
“ “Endorsement A4562 is amended to show charges for coverage F as $59.00 for coverages G. and H. as $50.00 M. P. and charge of $25.00 for Dealers’ Supplemental Coverage . . . making the) total charge for Physical Damage Coverage $134.00.’
“The only premium actually paid by the insured was the total shown on the Special Endorsement (A312) or $134.00, which recited no false pretense coverage.”
There is nothing in the stipulation of facts which indicates any mistake, misunderstanding, or deceit. It would appear from the record that the insured got the coverage for which he paid; that he paid for the coverage which he desired; and that false pretense was not included.
Furthermore, there is nothing in the record which indicates that the thief got custody .of the automobile by false pretenses. The facts as stipulated do not disclose the method or manner by which the thief got custody. Even though false pretenses were covered by the policy, such facts do not purport to show that false pretenses were used by the thief to obtain custody.
Appellant further contends that the damages to the automobile are covered by the provisions in the policy insuring against loss or damage resulting from malicious mischief or vandalism. The only facts stipulated touching the question are:
“That the insured automobile was recovered some months later with damage which included cigarette bums, blood stains, motor damage, tire cuts, broken glass, and body damage on all four quarters.”
The district court found that the facts stipulated were not sufficient to constitute malicious mischief or vandalism. We agree. There is no showing as to how or in what manner the damages listed were incurred.
Malicious mischief is a well considered term under the law. It has been generally recognized as a distinct common law offense. Malice is an essential ingredient.
See 54 C. J. S., Malicious Mischief, p. 935 § 3[a], where the following statement appears: “Malice has been held to be an essential ingredient of malicious mischief both at common law and under most of the statute defining the offense. . .”
There are no facts presented in the stipulation of facts which tend to indicate malice.
The word “vandal” generally means a ruthless plunderer. The word was taken from one of the tribes of Vandali. Webster’s New Twentieth Century Dictionary, Unabridged (Second Edition), states:
“1. one of the most barbarous of the East Germanic tribes, that ravaged Gaul, Spain, and northern Africa, and invaded Rome in the fifth century; notorious for destroying the monuments of art and literature.
“2. one who willfully or ignorantly destroys or disfigures, especially that which is beautiful or artistic.”
The word “vandalism” connotes the acts of vandal. It is defined "in 91 C.:¡p. S., Vandalism, p. 802, as follows:
“Originally the word Vandalism’ meant the barbaric and ruthless destroying or spoiling of something venerable, artistic, or beautiful; and, according to the dictionaries, ‘vandalism’ means the wilful or ignorant destruction of artistic or literary treasures; hostility to, or contempt for, what is beautiful or venerable. In ordinary usage the word is not limited to the destruction of works of art, but has been broadened in its meaning to include destruction of property generally.”
There are no facts presented in the record which would establish that the damage to the car was an act of vandalism.
We find nothing in the record presented or in the contentions advanced by appellant which warrants or permits a reversal of the trial court’s judgment.
In conclusion it should be stated that the appellant’s claim for attorney fees was properly denied. Appellant having failed to recover under the policy of insurance, the insurer had just cause and excuse (G. S. 1961 Supp., 40-256) for refusing payment. See Lindesmith v. Republic Mutual Fire Ins. Co., 189 Kan. 201, 368 P. 2d 35; and Parker v. Continental Casualty Co., 191 Kan. 674, 383 P. 2d 937.
The judgment is affirmed.
Robb and Fatzer, JJ., dissenting. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from an order of the district court of Cowley County, Kansas, admitting a will to probate, after a verdict by an advisory jury was approved and judgment entered.
The underlying question in the case is whether the testator had sufficient mental capacity to make a will.
The appellant contends this case is unusual and unique among previously reported will contest cases before the Supreme Court on the subject of mental capacity in that the unchallenged and positive medical testimony of three specialists, who had treated the testator for years, was the only medical testimony in the entire case. Their testimony was to the effect that the testator was totally incapacitated by advanced cerebral arterio-sclerosis and senile dementia, which affected the ability and power of his brain to use the reasoning processes. The appellant charges that the evidence in this case and the decision of the trial court admitting the will to probate “dramatize the wide and startling gap between the progress in medical science and the static and backward existence of Kansas law on the subject of mental capacity.”
On the 5th day of August, 1952, Charles T. Roberts, hereafter referred to as the testator, executed his last will and testament. On February 11, 1953, testator was adjudged incompetent and a guardian appointed.
On March 3, 1961, shortly after the testator’s death, his will was admitted to probate in the probate court of Cowley County, Kansas, and on appeal to the district court the matter of the decedent’s testamentary capacity was tried de novo, with a jury in an advisory capacity.
The jury found the testator had testamentary capacity on August 5, 1952, and the trial court approved the finding of the jury and ordered the will in question admitted to probate.
The appellant attacks the testimony of the proponents’ witnesses stating it is unsubstantial and incompetent. The appellant argues the witnesses for the proponents are weak because they do not measure up to the Kansas rule which requires a witness, preliminary to expressing an opinion on capacity, to relate facts which he observed about the testator as a foundation for such opinion. (Citing, Baughman v. Baughman, 32 Kan. 538, 4 Pac. 1003; and In re Estate of Harris, 166 Kan. 368, 201 P. 2d 1062.) The foregoing charge is not substantiated by the record.
At the trial in the district court the scrivener of the will, Stewart S. Bloss, an experienced attorney in Winfield, Kansas, and his secretary, Grace Hill, testified to all the essential matters necessary to show testamentary capacity. Other witnesses for the proponents were a real estate man who had known the testator for more than two years prior to the execution of the will and visited with him frequently; a friend of fifty years standing and a constant companion for four years immediately after the execution of the will; a niece who visited with the testator in 1952; a neighbor and a tenant of the testator who saw him many times in the summer of 1952; and a former abstracter who had known the testator for forty years.
The substance of the testimony given by these seven witnesses, if taken as true, established the necessary elements of mental capacity to make a valid will as required and frequently applied by this court — that at the time the instrument was executed the testator knew and understood the nature and extent of his property; that he knew about his relatives and others who may be the objects of his bounty, and their condition and relation to him, and was able to direct and make disposition of his property with understanding and reason. (Hudson v. Hughan, 56 Kan. 152, 42 Pac. 701; Barnhill v. Miller, 114 Kan. 73, 217 Pac. 274; Klose v. Collins, 137 Kan. 321, 20 P. 2d 494; Stayton v. Stayton, 148 Kan. 172, 81 P. 2d 1; In re Estate of Ellis, 168 Kan. 11, 210 P. 2d 417; and In re Estate of Millar, 185 Kan. 510, 345 P. 2d 1033.)
The last will and testament of the testator, among other things, gave a life estate in the testator’s 400-acre farm to Albert H. Roberts, his only son, the appellant herein. Albert had two children by his second wife, who later divorced him, and these two children are the named beneficiaries of the remainder interest in the real estate of the testator. The son of Albert died after the testator’s death, and his infant daughter, Kim Roberts, is a party to this action in his stead.
The divorce between Albert and his second wife and its aftermath was very bitter, involving among other things the refusal of the mother to allow the children to see either Albert or his parents, one of whom was the testator. The result was complete estrangement between Albert and his children. Albert, the appellant herein, having been given only a life estate in the farm, is contesting the validity of the testator’s will on the ground that he lacked testamentary capacity, and his daughter and granddaughter, having been given the remainder in fee to the farm and a house and lot in Winfield, are the proponents of the will.
The substance of the appellant’s testimony was that the testator in 1940 at the age of 70 years suffered severe head injuries in an automobile accident, and according to medical testimony and lay testimony began to decline thereafter, both physically and mentally. Early in February, 1952, the testator suffered first, second and third degree burns to his lower limbs and body when his clothing ignited from a brush fire he had carelessly started on the farm. There was evidence the testator developed peculiar mannerisms and behavior patterns noticeable by neighbors and business acquaintances, which became quite pronounced from 1951 onward, including a penchant to set fires. Early in the period of 1950 through 1951 the testator made three different wills (other than the will admitted to probate herein), one of which was admitted in evidence, and two of which were excluded, in all of which he left his property, excluding some minor bequests, to his son, the appellant, absolutely. The appellant contends the significant period, as far as the mental capacity of the testator was concerned, was from the time he was hospitalized from the severe burns early in February, 1952, until his adjudication as an incompetent in the probate court of Cowley County early in February, 1953.
Evidence was conflicting as to the testator’s mental state during his hospitalization and thereafter. All of the appellant’s witnesses described the testator as being incompetent, unsound of mind, and as having mental deterioration.
Three of the appellant’s witnesses were physicians, two being specialists in diseases of the circulatory and cerebral-vascular system. They testified that they had known, examined and treated the testator for several years prior to sustaining his bums, and thereafter; that the serious bums were a severe traumatic experience which probably caused the disappearance of the testator’s reasoning; that in their opinion the testator was not mentally competent during the year 1952, either while in the hospital for treatment of burns, or during the period between June and December, 1952, when none of them had occasion to see the testator, or in December, 1952, when the testator was again in the hospital for a heart attack, also stemming from his advanced arteriosclerotic condition. Both the loss of mind and heart attack were ascribed by the physicians as being the end results of lengthy and advanced stages of arteriosclerosis. These doctors, along with a nurse, identified the hospital records in the form of nurses’ daily notes kept on the testator during his two hospitalizations in 1952 for burns and heart attack, which showed many notations by the nurses of the testator’s mental aberrations.
The testator was maintained in boarding homes, rest homes and the hospital from November, 1952, until his death in 1961, at the age of 90 years.
It is the appellant’s contention that “A trier of facts whether an advisory jury, a trial judge, or both, cannot disregard the only medical evidence produced in the cause given by three eminent physicians and specialists in diseases of the circulatory and cerebral-vascular system, which is based on positive, uncontroverted testimony inherently probable, candid and unbiased, unsullied by adversary medical expert testimony or cross-examination, and given from several years of personal observation, diagnosis and treatment, that a testator lacks testamentary capacity.”
From the evidence the appellant argues:
“5. The doctors were not saying that the fact that testator had both senile dementia and cerebral arteriosclerosis made him incompetent but that the established scientific results of brain or cerebral arteriosclerosis in this testator was that because of inability of sufficient blood to get to the brain through the narrowed and closed blood vessels of testator — whether large or small blood vessels was immaterial — the brain cells did not receive sufficient oxygen, had withered and died. In other words, the effects of the disease eroded away parts of the brain controlling the thought or reasoning processes.
“6. That the regeneration power of brain cells is practically nil and once they are damaged they do not return or rebuild themselves like other tissue, and so the power to reason or use the thought processes of the brain never comes back — hence there are no lucid moments. . .
The crux of the appellant’s argument is therefore that the loss of brain tissue in the testator was a physical process as distinguished from a mental process, and while medical science did not know everything about how mental processes work, they were certain about the effects of physical processes such as occurred to the testator from advanced cerebral arteriosclerosis. By reason thereof, the appellant concludes that the testator was of unsound mind at all times during 1952, and it would have been impossible for him to have had a sound or lucid interval at the time he executed the will, “because he lacked the physical basis in his brain to understandingly and reasonably dispose of his property. The disease had destroyed the brain cells controlling his power to reason and he could never again make a rational decision.”
The appellant relies upon the proposition of law that ordinarily the frier of fact is not required to believe the testimony of any witness merely because there is no direct testimony to controvert it, but where the plaintiff produces the only testimony on every material element of his cause of action, and such testimony is not inherently improbable or uncandid, and the cross examination does not develop any conflict, and the defendant or opposite party or parties produce no testimony in opposition, the trier of fact is not justified in arbitrarily or capriciously disregarding such testimony. (Citing, Gibbs v. Central Surety & Ins. Corp., 163 Kan. 252, 181 P. 2d 498; In re Estate of Wert, 165 Kan. 49, 193 P. 2d 253; and Reeves v. Child, 165 Kan. 341, 194 P. 2d 919.)
The appellant contends his medical evidence was the strongest type of testimony that could be obtained on the issue of testamentary capacity, because it was based not on the statement of some assumed facts in a hypothetical question, but from the personal observation of these skilled and trained specialists in the cause, course and effects of the disease with which the testator was afflicted.
The foregoing rule upon which the appellant relies does not apply to the facts presently before the court. In fairness to the proponents of the will it should be said that two of the appellant’s medical witnesses on cross examination weakened. One admitted the disposition of the property made by the testator in his will reflected a reasonable decision, and not having seen him on the day the will was executed he “wouldn’t rule out completely with medical certainty that he didn’t know what he was doing when he did it.” The other medical witness also conceded he could not say with reasonable medical certainty the testator did not have testamentary capacity on August 5, 1952. He further conceded the testator might have had a lucid interval when he was making and signing the will in question even if he had had a large amount of deterioration.
The appellant recognizes his dilemma by inferentially admitting in his brief the proponents of the will made a prima facie case. He says, “the testimony produced at the trial on behalf of proponents was so weak, so biased, and so generalized as to barely raise Proponents’ case to the prima facie level.”
Counsel for the appellant also attacks certain decisions of the court and the doctrine of stare decisis. The appellant asserts that the evidence of his medical witnesses should virtually attain the high status of expert medical testimony in malpractice cases— where medical testimony is held necessary in order to prove a cause of action. (Citing, Riggs v. Gouldner, 150 Kan. 727, 728, 96 P. 2d 694.)
It must be observed, however, that even the rule in malpractice cases has its exception. This is indicated by Syllabus ¶ 2 in Goheen v. Graber, 181 Kan. 107, 309 P. 2d 636, as follows:
“In actions against physicians for negligence and malpractice in the treatment and care of patients, the established rule in this jurisdiction and elsewhere is that with respect to those matters clearly within the realm of medical science, such as whether a patient has been treated or an operation performed with a reasonable degree of skill and care, only those who are qualified as experts are competent to testify. Matters within the common knowledge of mankind generally, may be testified to by anyone familiar with the facts.”
It has heretofore been held that where the validity of a will is attacked on the ground that the testator was mentally incompetent to make the will, nonexpert testimony is competent on the question of mental capacity, and the trier of facts is not bound to adopt the facts and opinions of a physician qualified as an expert in psychiatry and neurology, to the exclusion of other nonexpert testimony. (In re Estate of Millar, 185 Kan. 510, 345 P. 2d 1033.)
The appellant relies upon the Millar case and quotes the following passage:
“While the trier of the facts might under some circumstances reject expert testimony absolutely, depending upon the circumstances, and give it no weight because it is believed to be least worthy of credit, it does not follow that such expert testimony can be disregarded. (Forsyth v. Church, 141 Kan. 687, 42 P. 2d 875.)” (p. 517.)
The foregoing passage is construed by the appellant as a remark by the court expressing “doubts of automatically offsetting or disparaging expert medical opinion on testamentary capacity.” This construction of the language is ill-founded.
It is believed the language requires no clarification. The term “disregarded” was used to mean: to give no thought to, or to pay no attention to, the testimony. On the other hand, if consideration is given to the testimony of an expert, it is not disregarded, even though it may be rejected by the trier of the facts because under the circumstances it was believed to be least worthy of credit. If rejected, the testimony is given no weight.
The testimony of experts is to be considered by the same rules and tried by the same tests as any other testimony adduced in a case, and is entitled to such weight and credit as the trier of the facts believes it possesses, when viewed in connection with all the circumstances and other testimony adduced in the case.
While it must be conceded in the Millar case, an osteopathic physician and two practicing physicians and surgeons who had attended the testator, testified on behalf of the proponents of the will, as against a psychiatrist, a specialist in mental disorders, for the contestant, the opinion was not limited to the testimony of medical men or their comparative degree of specialty or skill. In Syllabus ¶ 6 the court said:
“The expert testimony of a psychiatrist on the question of mental capacity should not be so considered by the trier of the facts as to nullify all nonexpert testimony in conflict with it, nor should it be so considered as to nullify the expert testimony of medical doctors who attended the testatrix in her lifetime even though they were not specialists in psychiatry and neurology.”
What has been said and held in the Millar case on the point presently under consideration controls our decision herein, and the reader is referred to that opinion without repeating what has already been said therein.
The appellant relies on Johnson v. Schrader, 114 Kan. 341, 219 Pac. 269, and quotes the following language:
“. . . But the various specific acts tending to show unsoundness of mind, coupled with the opinions of the two physicians, warrant a finding that his unsoundness of mind was not merely occasional but a continuous condition which once established may be presumed to have remained unchanged in the absence of controlling evidence to the contrary. . . .” (p. 345.)
The trial court there found the testator was mentally incompetent to make a will, and the evidence before the court warranted such a finding.
Had the advisory jury in the instant case found the testator to be incompetent, and the finding of the trial court been consistent therewith, the evidence in the instant case would have warranted such a finding. That is not to say, however, that the trier of the fact in the instant case was bound to make such finding. Upon conflicting evidence the finding was to the contrary, and it was supported by substantial competent evidence set forth in the record.
The appellant complains of certain specified instructions given to the jury, contending they had a tendency to mislead a lay jury. In the instant case the jury was only serving in an advisory capacity and its findings were thus only advisory. Under such circumstances, the findings made by a trial court are independent findings made upon a consideration of the same evidence presented to the jury. Error, if any, made by the trial court in giving instructions to an advisory jury are immaterial. (Munn v. Gordon, 87 Kan. 519, 522, 125 Pac. 7; and Minch v. Winters, 122 Kan. 533, 253 Pac. 578.)
The appellant next contends the cumulative effect of numerous trial errors prejudiced his cause of action, and his right to a fair and impartial trial on the sole question o£ the testamentary capacity of the testator.
First, the appellant contends it was a breach of the trial court’s discretion to permit an advisory jury for the trial of this case.
There is nothing whatsoever in the record to indicate any abuse of discretion by the trial court in calling the jury in an advisory capacity.
Second, the appellant contends it was error for the proponents of the will to inject partisan politics into voir dire examination of the jury. Here, however, the appellant fails to abstract facts to show that any objections were made by the appellant to such questions.
Third, the appellant contends it was error for the trial court to refuse his expert medical witness, Dr. Snyder, to testify whether the existence of the so-called “Elrod delusion” motivated or affected the testator in the making of the will in question. This point has reference to testimony that the testator believed he was cheated out of a share of the estate of his wife’s father by the name of Elrod, when, as a matter of fact, he had no interest in such estate as an heir.
The record as abstracted does not show that the excluded evidence was produced at tihe hearing of the motion for a new trial pursuant to G. S. 1949, 60-3004. Where the ground of the motion for a new trial is error in the exclusion of evidence, the excluded evidence must be produced at the hearing of the motion for a new trial. (In re Estate of Millar, supra, Syl. ¶ 2.)
Fourth, the appellant complains because the trial court did not permit him to introduce two copies of wills purported to be made by the testator dated September 8, 1950, and one dated September 13, 1950, for the purpose of showing the expressed intention of the testator at the time to leave his principal estate to the appellant, absolutely. No proper foundation was laid for the admission of these wills into evidence in that there was a failure to show the wills had ever been executed, or that they had been prepared at the direction of the testator.
Fifth, the appellant complains that the trial court permitted him to be cross-examined concerning the divorce of his second wife, and the support of his minor children, under the guise of testing his credibility when the subject matter was not gone into on direct examination. It is argued counsel for the proponents pursued this course of examination for the sole reason of inflaming and prejudicing the court and jury against the appellant.
When a party takes the stand as a witness his adversary has a right, on cross examination, to inquire concerning his past life and conduct for the purpose of affecting his credibility. The limit of such inquiry is ordinarily within the discretion of the trial court. (Sanders v. Sitton, 179 Kan. 118, 292 P. 2d 1099, Syl. ¶ 4.)
It could not be said from the record here presented that the trial court abused its discretion on this point.
Other errors urged by the appellant have been given careful consideration, but upon the record presented are found to have no substantial merit.
On the basis of the record presented, it does not affirmatively appear that errors made by the trial court, if any, have prejudicially affected the substantial rights of the appellant.
A cross appeal has been perfected by the administrator de bonis non cum testamento annexo from the order of the district court allowing attorneys’ fees to the respondents’ (proponents’) attorneys in the sum of $3,500; to the appellant’s attorney in the sum of $3,000; and to the guardian ad litem in the sum of $400.
The questions raised by the cross appellee are (1) whether it is proper for a trial court to allow attorney’s fees to the attorney for an unsuccessful contestant of a last will and testament where the contestant’s purpose by his own statements was for his own benefit; and (2) whether a trial court may order attorneys’ fees to be paid which total $6,900, exclusive of fees eventually to be allowed to the attorneys for the administrator and administrator de bonis non cum testamento annexo, when the gross amount of said estate totals only $50,147.97.
G. S. 1949, 59-1504, provides in part:
“. . . Whenever any person named in a will or codicil defends it, or prosecutes any proceedings in good faith and with just cause, for the purpose of having it admitted to probate, whether successful or not, or if any person successfully opposes the probate of any will or codicil, he shall be allowed out of the estate his necessary expenses and disbursements in such proceedings, together with such compensation for his services and those of his attorneys as shall be just and proper.”
While the foregoing statute is part of the probate code, it has been held in conection with the allowance of reasonable attorneys’ fees in cases involving litigation over a will that under the provisions of what is now G. S. 1949, 60-3706, the district court in its discretion has authority to tax costs and allow attorneys’ fees and to determine from what source they should be paid, as it may deem right and equitable. (In re Estate of Sowder, 185 Kan. 74, 340 P. 2d 907, and cases cited therein at page 86 of the official report.)
Under G. S. 1949, 59-2408, an appeal from a decision of the probate court places the matter in the district court for a trial de novo as though that court had jurisdiction on all matters therein involved. In the determination of the issues the district court can exercise the same jurisdiction and power as though the controversy had been initiated there. (In re Estate of Walton, 183 Kan. 238, 326 P. 2d 264.)
Construing the force and effect of the foregoing statutes (59-1504, 60-3706, and 59-2408, supra) we hold the district court was authorized to make an allowance for attorneys’ fees on the matter litigated to the extent such allowance is authorized by 59-1504, supra.
Ordinarily attorneys’ fees will not be paid to an unsuccessful contestant of a last will and testament where the primary purpose in contesting the will is for the contestant’s own benefit. In the instant case the will is perfectly clear and unambiguous. It required no construction to give it force and effect. The litigation involved only the mental capacity of the testator to make a will. The sole purpose of the appellant’s action was to gain the entire estate for himself as the sole heir of the testator, but was unsuccessful in the litigation.
In Householter v. Householter, 160 Kan. 614, 164 P. 2d 101, the appellees were forced to involuntarily uphold a will which did not appear on its face to be ambiguous. No estate or trust fund was benefited by the litigation. The court held the appellant sought to recover for his personal benefit — not for the benefit of all parties incidentally concerned with the litigation. The court said: “. . . In such cases attorneys’ fees ordinarily are not properly allowed to counsel for the. unsuccessful party. . . .” (p. 620.)
A similar case is In re Estate of Reynolds, 176 Kan. 254, 270 P. 2d 229, where one of the defendants sought to have a will construed upon a point which was clear and needed no construction. It was held the trial court was justified in denying the attorneys’ fees of her counsel and assessing them against the funds of the estate. Other cases discussing this point are In re Estate of Sowder, supra; and Parsons v. Smith, Trustee, 190 Kan. 569, 376 P. 2d 899.
In view of the foregoing we hold it was error for the trial court to allow attorney’s fees to the appellant’s attorney in the sum of $3,000.
The only other point presented by the cross appeal involves the reasonableness of the allowance of attorneys’ fees to the respondents’ attorneys and to the guardian ad litem. This matter is within the discretion of the trial court and we cannot say in view of the size of the gross estate that such allowances were excessive for the attorneys’ services in this litigation.
Based on what has heretofore been stated and held, the judgment of the lower court ordering the last will and testament of Charles T. Roberts, deceased, admitted to probate is affirmed; the judgment insofar as it ordered the allowance of attorneys’ fees for respondents’ attorneys in the sum of $3,500 and guardian ad litem fees in the sum of $400 is affirmed; but the judgment insofar as it ordered the allowance of attorney’s fees for the appellant’s attorney in the sum of $3,000 is reversed. | [
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The opinion of the court was delivered by
Horton, C. J.:
Action of ejectment.. After Clark had offered in evidence on the trial in the court below, to sustain his cause of action, and title to the premises in controversy, a patent to the premises from the United States to ¥m. Hurr of the date of December 1st 1865, and a quitclaim deed from ¥m. Hurr and Emily W. Hurr to himself of the same property, of date November 13th 1872, for the consideration of $200, he rested his case. The defendant on his part then called the plaintiff as a witness for the defense, who testified that he made the agreement attached to the amended answer on the evening of November 13th 1872, some six or eight hours after the deed from Hurr and wife to himself was executed and delivered to him; that when he made the purchase from Hurr of the lands, and when the deed was executed and delivered, nothing had been said about the agreement, but that afterward, at the request of Hurr, and without any consideration therefor, he (Clark) executed the said agreement. The agreement is as follows:
“Know all men by these presents, that I, W. H. Clark, of Ottawa, Franklin county, Kansas, have this day received from ¥m. Hurr of the Ottawa Nation, Indian Territory, a quitclaim deed to the" following-described tracts or parcels of land situáted in Franklin county, state of Kansas, to-wit, the E. J of the W.i of section 30, and the E. J of the N.W.J of section 31, both tracts of land in township 16, range 20; also, the E.£ of the N.W.J of section 7, township 17, range 20, all of said tracts containing 320 acres of land; and I do hereby agree to notify certain parties who claim to have title to said lands from William Hurr, that I now have the same, and to offer to perfect their title to said land. And it is hereby agreed and understood, that in case said parties refuse and neglect to purchase said title within sixty days from the date of notification, then in that case I am to be released from any obligations to convey the said title to said parties.
“In witness whereof, I have hereunto set my hand this 13th day of November, 1872. Wm. H. Clark.”
The said agreement was then read; and the defendant offered in evidence, against the objections of the plaintiff, a warranty deed from Wm. Hurr and wife to I. S. Kalloch, of December 1st 1865, for the same lands, the consideration being $1,300; and*a warranty deed from I. S. Kalloch and wife to the defendant, the execution of which was acknowledged and certified, December 9th 1865. Both of said deeds were duly filed for record in the office of the register of deeds of Franklin county in June 1866. Defendant then rested. Plaintiff in rebuttal testified, that on December 3d 1872, and soon after he made the agreement with Wm. Hurr, he wrote a letter which he addressed to Washington Libbey, at his street and number, in Chicago, Illinois, and mailed the same in Ottawa, Kansas. The following is a copy of the letter which was read in evidence:
Ottawa, Kansas, December 3d, 1872.
Washington Libbey, Esq. — Dear Sir: On the 13th of last month I purchased from Wm. Hurr the following-described lands, to-wit, the E.|- of the W.J of section 30, and the E.§ of the N.W.J of section 31', township 16, range 20, Franklin county, Kansas; and I find from the record in the office of .the register of deeds in this county, that you claim to have some kind of a title to said lands; and in order to perfect your title to said lands, I hereby offer to sell you my title at the price of ten dollars per acre, and in order to give you time to investigate my title, and satisfy yourself of its validity, I will give you until the 10th day of February 1873, to complete the purchase of my title.
I am yours very' truly, Wm. H. Clark.
Witness then testified that he did not receive any direct answer to his letter from Mr. Libbey, and on February 17th 1873, he wrote and sent to Washington Libbey the following letter:
Ottawa, Kansas, February 17th, 1873.
W. Libbey — Dear Sir: I wrote you in December last, in regard to the land here, which you bought of Kalloch, and I have since learned from Mr. Kalloch that you intend to fight me to the bitter end; and as there is a question as to who has the better title, you or I, and as I don’t feel able to fight you, I would much rather settle than fight. When I bought the land from Hurr I only gave him $200 for it, but I don’t feel able to lose that sum; and as I agreed with Hurr to give you the first chance to buy me out, I would like you to make me an offer of what you will give, and I assure you that any offer you may make me will be favorably considered. At least write me, and tell me the best you will do, for I am anxious to get clear of the thing.
Yours truly, W. H. Clark.
And that on March 7th 1873, at Ottawa, Kansas, he received in the post-office the following letter, which was identified and admitted in evidence as the letter of Washington Libbey:
Chicago, March 5th, 1873.
W. PI. Clark, Esq. — Dear Sir: Your favor of the 17th has come to hand, and contents noted. The land you refer to I have had a warranty deed for, several years, from I. S. Kalloch. Yours truly, Washington Libbey.
Clark then testified, that on the next day he commenced this action. It was then admitted in court by both parties, that I. S. Kalloch was a white man, and that William Hurr was an Indian, a headman, and councilman of said tribe; and also, that said land in plaintiff’s petition mentioned was a part of -the five sections of land set apart for the chiefs, headmen, and councilmen of said tribe under the provisions of art. 3 of the Ottawa treaty of 1862. The above was all the evidence introduced on the trial. The case was submitted to the court, a jury having been Waived. The court found gen-" erally for the defendant, and rendered judgment accordingly.
This is the second time that this case has been in this court; Clark v. Libbey, 14 Kas. 435; and the decision in the case on the former hearing here, disposes of the deed from Wm, Hurr and wife to I. S. Kalloch, the grantor of defendant, of date of December 1st 1865. This deed was then held null and void, under art. 7 of the Ottawa treaty of 1862; and no sufficient reasons are presented in the brief of counsel for the defendant to induce us to revoke or change the views therein expresséd. We adhere to the former decision, and hold that said deed of December 1st 1865 transferred no title to the grantor of the defendant. At the,date of the deed to Kalloch,'Wm. Hurr had not become a citizen of the United States by the terms of the said treaty, nor had the restrictions upon his power to alienate his property been removed; but at the date of the deed from Hurr to the plaintiff, November 13th 1872, he had become such citizen by the conditions thereof, and said restrictions had been removed. With the deed from Hurr to the grantor of the defendant stricken from the record, defendant must stand alone on the agreement of Clark of November 13th 1872; and unless this agreement sustains the finding and judgment of the court below, the same must be adjudged to be erroneous.
Counsel for defendant insist that upon all the evidence the realty in dispute must be held to be trust property, and that the relation of trustee and cestui que trust subsists between Clark and Libbey, and they cite the case of Lane v. Ewing, 31 Mo. 75, and the authorities therein named, as specially in point. We do not think the decisions referred to applicable. The agreement was without consideration — was no part of the deed from Hurr to Clark, was not brought into existence until after the deed to Clark had been delivered, and was not made in pursuance of any prior understanding. The most that can be said of it, is, that it was a promise for which there was no consideration. The action of Clark, after the execution of the said agreement, favors in no respect the relation of trustee on his part. His intentions and intimations were exactly the reverse. The fact that Hurr executed a void deed to the grantor of defendant, does not sustain in any way the agreement of Clark to Hurr. This court, in the case of Clark v. Akers, 16 Kas. 166, held that the execution of a second deed to another grantor for the same land, where a prior deed under similar circumstances as the one from Hurr to Kalloch had been made, was not such a legal fraud upon the first grantor as to prevent the second deed from having full force and effect. The evidence in the case at bar does not sustain the finding and judgment for the defendant, and the judgment of the district court must therefore be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
This was an action of replevin, brought by defendant in error. The defendant (plaintiff in error) gave the required undertaking, and retained possession of the property. Two errors are alleged. The first is, that the court erred in refusing to set aside the order of delivery, because no action was commenced or pending at the time the motion to set aside the order was made. The condition of the case at the time was this: The petition was filed, and a summons and order of delivery were issued at the time. The summons was regular on its face, but the clerk indorsed thereon that the plaintiff claimed $200, and interest thereon. At the first term of court this indorsement was stricken from the summons, as irregular, and unauthorized, on plaintiff’s motion, who thereupon obtained leave for a new summons to issue. ' At this stage of the proceedings the motion to set aside the order of delivery was made, and refused — and we think correctly refused. The first summons was good. It was all that was necessary to bring the defendant into court. How far the indorsement thereon might have affected the extent of plaintiff’s right of recovery, had the defendant re-1 mained in default, we need not inquire. The indorsement, when stricken out,.did not invalidate the summons; nor did the issue of a new summons change the status of the case. The action was pending, because a petition had been filed, and a summons issued thereon.
The other question raised in the case is as to the measure of damages. The action was replevin. The defendant gave bond under §182 of the code, and retained possession of the property. The property consisted of a mule, a mare, a colt, and a set of harness. The jury found for the plaintiff, and found the mule worth $90, the mare $80, the colt $15, and the harness $15, (total, $200.) The colt had strayed away and come into possession of the plaintiff soon after the suit was instituted. The'court instructed the jury .that the plaint tiff, if entitled to a verdict, was entitled to recover as damages, “the actual worth of the use of the property, above the expense of keeping the same, from the time it was wrongfully detained by defendant.” The jury returned a verdict for five hundred dollars damages for the detention of the property. The large disproportion between the value of the property, as found by the jury, and the damages they returned, naturally raises the question as to whether the rule laid down by the district court is correct. The plaintiff in error claims that the only damages recoverable are, interest on the value of the property for the time it was wrongfully detained. It may be stated as a general rule in replevin, that such is the measure of damages; but though this is a general rule, it is by no means a universal one; and one of the most generally recognized exceptions is, where the property in controversy has a usable value. In such case, the owner’s damages are the loss of the use of the property for the time it is detained, and nothing less than this is a compensation for his injuries. In the casé of Allen v. Fox, 51 N. Y. 562, the learned judge delivering the opinion of the court has suggested a number of supposable cases where interest would be a grossly inadequate compensation; but in none of the cases that occurred to him would interest only as damages be such a mockery of the term as is presented in this case. From the record we learn that the mare and mule made a team, and the only one owned by defendant in error, and used by him for carrying on his farm; that on the 21st of May they were seized by the plaintiff in error without a pretext of ownership, and retained for sixteen months and seven days, until the final trial, plaintiff in error avowing that his object was to prevent the owner from making a crop, and thereby breaking him up, and compelling him to leave the neighborhood, saying to more than one witness' that he would only have to pay interest on the value of the property seized. For-this loss the plaintiff in error thinks that $18.96 (the interest at seven per cent, per annum on $200 for sixteen months and seven days,) would be an adequate compensation, as the defendant in error could have readily bought another team, as it was a species of property common in the country, and there was no difficulty in the defendant in error buying another team at a.reasonable price; and had he have done so, the only damage he would have sustained would have been the use of the money for the time. It might be an answer to this reasoning to say, that on the plaintiff in error’s own declaration, the owner could not buy another team as he was not able to do so, a condition of things not uncommon in a new country. "While this answer ought to be conclusive, so far as this plaintiff in error is concerned, it is not such an one as should be laid down as the basis of a rule; and a better one is at hand. The object of the plaintiff in replevin is the possession of his property. If he, succeeds in his suit, he is compelled to take the property, if the defendant so wills. Then the plaintiff has (if he has bought in the mean time) two teams, when he wants but one, while the defendant has had the use of one of them, by merely paying interest on the value of the property. This would not be compensation, which is the real object in damages, wherever damages are allowable at all. It is true, that general rules will not in all cases give adequate damages; but it is the object of the law to do so whenever such a result does not break down some settled rule of law.
The judgment of the court below will be affirmed.
"Valentine, J., concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was brought by Cobb, Stribling & Co., as assignees of G. F. Bernstein, against the In surance Company of North America, for the loss of a certain stock of goods insured by said company, and destroyed by fire. We have once before had this case under consideration, and we then decided such questions as were then presented to us. (Cobb v. Ins. Co. of N. A., 11 Kas. 93.) A new question is now presented, and that question is, whether Bernstein had a right under his insurance policy, and without any further or other permission from the insurance company, to keep gunpowder for sale in his store, along with his other goods, in such quantities and in such shape as it is usually kept for sale in country stores. The insurance policy, so far as it has any application to this question, provides for insuring Bernstein’s “stock of boots and shoes, dry goods, drugs, liquors, and such other goods as are usually kept for sale in a country store; and that “ gunpowder, saltpetre, phosphorus, petroleum, naptha, benzine, benzole or benzine varnish, are positively prohibited from being deposited, stored, or kept in any building insured, or containing any property insured by this policy, unless by special consent in writing indorsed on this policy, naming each article specially, otherwise the insurance shall be void.” Accompanying the policy, and a part of it, is the application of the assured, in the body of which he obtains, in writing, special permission to keep one of the prohibited articles, in words following: “Permission given to keep coal oil, not to exceed three barrels at 'any one time.”
The first paragraph or clause above quoted from the policy is in writing, and the second is printed. Therefore, if there were any real and irreconcilable conflict between the two paragraphs, the first would, according to well-known rules of construction, be of controlling force in determining what the real intentions of the parties were. But we should not construe said paragraphs or clauses so as to make them conflict with each other, if such a construction can be avoided. On the contrary, we should construe them so as to make them harmonize, if such a construction is possible; and should construe them so as to give to each and, all their terms full force and operation. And in construing them we should also take into consideration the rest of the instrument, the acts of the parties, and all the surrounding circumstances. By this means we can probably arrive at the real intention of the parties; and the real intention of the parties is the great end and object in the construction of all instruments. The two most natural constructions that can be given to said paragraphs, (provided it be attempted to make them harmonize,) would seem to be about as follows: First — The insurance company insures Bernstein’s “stock of boots and shoes, dry goods, drugs, liquors, and such other goods, [including “gunpowder, saltpetre, phosphorus, petroleum, naptha, benzine, benzole or benzine varnish,”] as [ the same] are usually kept for sale in a country store,” provided, that “gunpowder, saltpetre, phosphorus, petroleum, naptha, benzine, benzole or benzine varnish [except “as” they “are usually kept for sale in a country store”] are positively prohibited from being deposited, stored, or kept in any building insured or containing any property insured by this policy unless by special consent [of the company] in writing indorsed on this policy, naming each article specially.” Second — The insurance company insures Bernstein’s “stock of boots and shoes, dry goods, drugs, liquors, and such other goods [including “gunpowder, saltpetre, phosphorus, petroleum, naptha, benzine, benzole or benzine varnish] as [the same] are usually kept for sale in a country store,” provided however, that as to “gunpowder, saltpetre, phosphorus, petroleum, naptha, benzine, benzole or benzine varnish [said insurance does not extend except by the “special consent” of the company “in writing indorsed on this policy, naming each article specially,” and said articles] are positively prohibited from being deposited, stored or kept in any building insured or' containing any property insured by this policy, unless by special consent [of the company] in writing indorsed on this policy, naming each article specially.” Other constructions might also be given to said paragraphs; but we think the second one which we have given is the most natural, and it undoubtedly has this great advantage over all others — it is the one which the assured himself gave to said paragraphs when he made his application for the insurance policy in which they are contained. If he had supposed that he could keep “coal oil” for sale without special permission from the insurance company, he would not have taken any trouble to obtain such permission. The reason for using the words or terms that the parties did use in said policy, instead of using some other words or terms, we think is obvious. It was evidently the intention of the parties, as we think, that every article of goods such as are usually kept for sale in country stores should be insured, either conditionally, or absolutely. But these articles are so various in kinds, and so unlimited in numbers, as to be practically infinite; and to name each article separately would be practically impossible. Then how are they to be named .or designated ? Some of them, as we have before stated, are insured absolutely, while others are insured only conditionally or contingently. Then how are these two classes to be designated ? Probably the only easy way of doing it would be to do it in the very manner that it was done in this particular case. First, use general language embracing all articles in both classes, and then by way of exception, limitation,- or modification use special terms, naming each particular article belonging to the smaller class. This can easily be done in this particular case, for in this case only a few articles, to-wit, “gunpowder, saltpetre, phosphorus, petroleum, naptha, benzine, benzole or benzine varnish,” belong to the smaller class. This use of language is common both in contracts, and in statutes. General language is first used embracing a large class of things, and is used with reference to such things absolutely and unconditionally. And then special words or terms, embodying an exception, a modification, a limitation, a proviso, or some condition,' is used with the intention of qualifying or explaining the previous general language. Bonds and mortgages in contracts, and provisos and saving-clauses in statutes, are good illustrations of this use of language. It is also, easy to be understood why the first paragraph above quoted from the policy of insurance is in writing, and why the second is •printed. Insurance companies always use printed policies, with certain blank spaces left in them to be filled up when issued according to the circumstances of each particular case. And insurance companies, like the defendant in error, generally insure all kinds of personal property which they may be asked to insure, whether the same is kept in stores or somewhere else, whether the same is kept for sale or for use, or for some other purpose, and whether the same belong to a merchant, a mechanic, a professional man, a farmer, or to some other person. Hence a blank space is always left in the printed policy for the description of the property insured, which blank space must be necessarily filled up in writing when the policy is issued. But this is not so with reference to “gunpowder, saltpetre,” etc. They are always dangerous articles, and are therefore, and should always be sufficiently provided for in the printed policies. Or at least, they should be and are always sufficiently provided for so far as the insurance company is concerned. Such an insurance policy as we are now considering has never before received judicial construction. What force and effect should be given to the words, “ naming each article specially ” contained in this policy, have never before been judicially determined. Hence we are left to grope our way in- the dark so far as any exact judicial precedents are concerned. In certain cases, where the said words, “naming each article specially,” have been omitted from the policy, courts have said that the insurance by the company by a clause in writing of “all such goods as are usually kept for sale in a country store,” is a “ consent by the company in writing indorsed on the policy” to keep the prohibited articles in quantities and in the shape in which they are usually kept for sale in country stores. But no court has ever decided that such an insurance was a consent to keep such prohibited articles “naming each article specially.” In some of - said cases it has also been said by the court, in delivering the opinion, that there was a repugnancy between the written and the printed clauses; but such of course has never been said in a case like the one at bar. In said cases the consent to keep the prohibited articles could be given and was given in general language; but in this case the consent must be given by “naming each article specially.” If the written clause in this case had so read as to insure Bernstein’s “stock of boots and shoes, dry goods, drugs, liquors,” “gunpowder, saltpetre, phosphorus, petroleum, naptha, benzine, benzole or benzine varnish,” “ and such other goods as are usually kept for sale in a country store,” then this case would be analogous to those cases, for the written clause in this case would then mention -the prohibited articles in the very language required by the printed clause, just as the written clause did in the cases to which we have referred. We do not think that there is any repugnancy in this case which the law will recognize between the written and printed clauses. Many analogous illustrations might be given, and we shall give two or three. Suppose that the granting part of a mortgage were written, and conveyed (as that part of the mortgage usually does) an absolute title, and that the defeasance clause were printed: then, if the mortgagee should bring an action on the mortgage, would it be held that there was a conflict between the written and the printed parts of the mortgage, and that the printed part was void? Would it be held that as the written part of the instrument was an absolute grant of the premises, and the printed part empowered the mortgagor, on the payment of a sum fixed, to have the instrument canceled, there was a conflict, and therefore the printed part should be disregarded, and the written treated as an absolute conveyance? And take the ease of an ordinary penal"bond, or a recognizance; and suppose that the obligation is written, and the conditions printed: the obligor, by his bond, admits that he owes, and binds himself in writing to pay the obligee a sum certain. By the condition, which is printed, he seeks to explain that he does not owe any money, and will not owe any, unless he fails to do a particular thing at some future time. Now there is as much conflict between the written and the printed parts of this bond, as there is in the contract at bar; but would any court if called on to pass upon this bond, say that the printed part, being inconsistent with the written, must be ignored, and the obligor held to the payment of the money as upon an absolute promise to pay? And again: Suppose that a farmer should make an agreement to sell “all the corn then on his farm, being about five thousand bushels,” “provided, however, that he might if he chose retain two hundred bushels thereof for his own use.” Would any person suppose that there was an irreconcileable conflict between the two clauses, and that if the' first were in writing, and the second printed, that the second must be held to be void?
After a careful consideration of the case, we have come to the conclusion that the printed clause in the policy in this case is not in conflict with any written clause therein. Or at most, there is no such conflict between any of the clauses of said policy as will render said printed clause void. The conflict, if any, is only to the extent that one clause modifies the other. Therefore, as gunpowder was not insured, except upon a condition precedent, which has never been fulfilled, and as it was absolutely prohibited from being kept upon the premises except upon a condition subsequent which has never been fulfilled, and as the assured did keep gunpowder on the premises in -violation of the express terms of his insurance policy, we think the policy was rendered void in accordance with its own express terms. ■ We have examined many authorities supposed to apply more or less nearly or remotely to this case, among which are the following, cited by the plaintiffs in error: Phœnix Ins. Co. v. Taylor, 5 Minn. 493; Whitmark v. Conway Fire Ins. Co., 16 Gray, 359; Niagara Fire Ins. Co. v. DeGraff, 12 Mich. 124; Harper v. Albany Mut. Ins. Co., 17 N. Y. 194; Bryant v. Poughkeepsie Mut. Ins. Co., 17 N. Y. 200; Harper v. N. Y. City Ins. Co. 23 N. Y. 441; Pindar v. Kings Co. Ins. Co., 36 N. Y. 648; Steinbach v. Lafayette Fire Ins. Co., 54 N. Y. 90; Hall v. Ins. Co. of N. A., 58 N. Y. 292; Archer v. Ins. Co., 43 Mo. 434; Wash. Ins. Co. v. Mer. & Man. Ins. Co., 5 Ohio St. 450; Franklin Fire Ins. Co. v. Updegraff, 43 Penn. St. 350; Citizens Fire Ins. Co. v. McLaughlin, 53 Penn. St. 485. And the following cited by defendant in error: Steinbach v. Ins. Co., 13 Wallace, 183; Peoples Ins. Co. v. Kuhn, 1 Cent. Law. Jour. 214; [This case will probably also be reported in 9 Heiskell’s Tennessee Reports]; McComber v. Howard Fire Ins. Co., 7 Gray, 257; Whitmarsh v. Charter Oak Ins. Co., 2 Allen, 581; Commonwealth v. Hide & Leather Ins. Co., 112 Mass. 136. Now we think that the printed clause in the present insurance policy may be held to be valid without conflicting with any of the foregoing decisions; but it could not be held to be invalid without conflicting with the last five of said decisions.
The judgment of the court below will be affirmed.
Brewer, J., concurring.
Horton, C. J., not sitting in this case. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action on a forfeited recognizance. This is the second time that the case has been brought to this court. [The State v. Weatherwax, 12 Kas. 463.) When the case was first brought to this court the only question involved therein was, whether a minor who was a defendant in a,criminal action could bind himself personally by a recognizance entered into by himself and sureties for his personal appearance at the next term of the district court to answer to a charge in such criminal action, of committing a criminal offense.' We then answered said question in the affirmative. There are now two new questions raised in the case. First: If said minor had, at the time he executed said recognizance, a guardian, who had previously been appointed by the probate court to manage the property of said minor, and if said guardian did not give his consent to said minor’s executing .said recognizance, would the want of such consent render said recognizance invalid as to said minor ? Second: And if, after said recognizance had been forfeited, and after said minor had been rearrested, tried, convicted and sentenced in said criminal action, the governor had then granted a full pardon to said minor for the offense of which he was convicted, would such pardon release said minor from all liability on said forfeited recognizance? We must answer both of these questions in the negative. We cannot see that the fact that Weatherwax had a guardian at the time that he entered into said recognizance, and that said guardian did not give his consent thereto, can make any material difference in this particular case. It does not appear that the guardian was ready or willing to furnish his ward with that personal liberty necessary for his growth and development, nor does it appear that the guardian could have done so even if he had so desired. Nor can we see how a pardon could reach a matter wholly independent of the criminal offense charged, or of the punishment therefor. Even if the defendant had been acquitted on the criminal charge, still this action on the forfeited recognizance might be maintained.
The judgment of the court below must be affirmed.
All the Justices concurring. | [
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The opinion of the court "was delivered by
Horton, C. J.:
Action in replevin, by Maria E. Meiners ¿gainst Alfred Palmer, sheriff, and A. S. Dennison, under-sheriff of Cherokee county. The property described in the petition was replevied. The defendants gave bond, retained and afterward sold it. The defense was substantially, that the property in controversy belonged to one Fred. Zipp, against whom the firm of Claflin & Thayer had sued out an attachment, under which process the defendants had attached and taken possession of the property. Mrs. Meiners was the mother-in-law of Zipp, and at the time of the levy she and the family of Zipp lived together on a farm owned by the wife of Zipp, but which Mrs. Meiners claimed to manage and control. The property was attached on this place. Palmer and Dennison disputed this claim, and offered evidence tending to show Zipp exercised ownership over the property, and used it as his own; that the claim of Mrs. Meiners thereto was fraudulent, and only asserted to defraud the creditors of Zipp. The jury returned a verdict for Mrs. Meiners, valued the property at $386, and assessed her damages at $21.19. The jury also returned special findings, to the effect that the property levied upon was not the property of Zipp, that Zipp purchased the same as the agent of Mrs. Meiners, and that the property replevied actually belonged to Mrs. Meiners when the attachment was served. Judgment was rendered that Palmer, Dennison, and Claflin & Thayer return the property, and in case return could not be had, that plaintiff in the court below recover $386 as the value of the property, $21.19 damages, and the costs of suit.
The first error complained of, is the action of the court below as to the instructions contained in the general charge. As to this objection, it is sufficient to say the only exception to the charge was thus taken: “ Excepted to by the defendant.” The charge as a whole, and in its general scope, is not erroneous, and the exception is unavailing. Wheeler v. Joy, 15 Kas. 389; Sumner v. Blair, 9 Kas. 521.
Instructions Nos. 4 and 5 given by the court were excepted to because, it is alleged, there was no evidence introduced to sustain the same. Instruction No. 4 reads: “If Zipp was furnished money by the plaintiff with which to buy property for her, and he did buy property which he afterward turned over her aQd which she accepted in lieu of a parfc 0f said money, such property become and was hers, whether Zipp paid in money or goods therefor, or whether he bought it on credit, if it was so accepted before its seizure by these defendants.” And instruction No. 5 is as follows: “A man in failing circumstances has a right to pay his debts, and may prefer one creditor over another, and may pay such one to the exclusion of the others.” The testimony is very indefinite as to any property being turned over to Mrs. Meiners in payment of debts due her from Zipp; but there is evidence in the record that Mrs. Meiners advanced or loaned money to Zipp, and as she claimed to be in the actual custody of the property at the time of its seizure, we cannot say that facts sufficient to base said instructions thereon were absolutely wanting. Admitting however that the evidence did not sustain such instructions, the special findings of the jury plainly show they could not have prejudiced the defendant^ in the court below, and hence the giving of the same is no cause for reversal of the judgment. Luke v. Johnnycake, 9 Kas. 511.
The court properly rejected instructions Nos. 3 and 14 asked for on the part of the defendants. No. 3 is to the effect that, if “the story as related by plaintiff as to her acquirement of the amount of money x ^ she claimed to have had when she left the old country, her mode of taking care of it, the discrepancy, if any, as to the amount she had then, the way she made it, the length of time she had it, the length of time she had been a widow, and all of these circumstances related by her, strikes your mind as being an unreasonable story to the extent of removing a fair presumption of its truth from your minds, you must find for the defendants.” And No. 14 states, “the court instructs the jury there is.no evidence in this case that the plaintiff purchased any of the stock in dispute.” That neither of these instructions should have been given, is evident.. No. 3 is not the law. No argument is necessary to sustain this position. As there was some evidence before the court, although indefinite, as to the purchase of the stock in controversy, the matter was properly submitted to the jury, and instruction No. 14 rightly refused. Mrs. Meiners testified, that “the stock was hers, and that she gave her son-in-law money before he went to Colorado, to buy stock with.” She also testified, “that she gave him $650 to keep and use for her, and that Zipp brought back from Colorado the wagon, harness, and pony” named in the petition. The evidence in the case, it is true, is very conflicting and contradictory; but the fact that the jury returned in their special findings, “ that Zipp purchased the property as the agent of Mrs. Meiners,” is conclusive. They believed the witnesses for the plaintiff in the court below. The court had nothing to do with weighing the evidence introduced, and properly refused to invade the province of the jury by giving said 14th instruction.
Objection is also taken to the action of the court in refusing to give an instruction to the effect, “that if plaintiff let Zipp have money to take to Colorado, and he brought back with him a part of the property levied upon, and such property was purchased with the money procured from plaintiff, the presumption of the, law is that it was his own property, unless there had been a bona fide purchase thereof by plaintiff before it was attached.” There was no error in this refusal, as the court in the general charge had fully covered the subject-matter intended to be presented to the jury in this instruction, and had stated therein more clearly the law upon this identical point. The court is not bound to repeat instructions to the jury, and should present the same in as simple and concise form as possible.
Objections are also made to the refusal of the court to give instructions Nos. 9 and 10. The ninth instruction so asked reads: ,
“ If you believe from the testimony that Zipp, in the presence and hearing of the plaintiff told the witness G.W. Todd that he was trading for the farm where this property was taken from, and had purchased certain personal property to be used thereon, and was going to put the plaintiff then in charge thereof — asking said Todd what the house of Claflin & Thayer would say or think of his trading his old stock of boots and shoes into said farm and stock, and in going to Colorado — and the plaintiff did not dissent from or consent to said statement, you must find for the defendants, provided you find said personal property was taken to the farm and the same or its increase, or property it was exchanged for, is a part of the property in dispute.”
The instruction is .erroneous, and was never the law. The court might have stated to the jury, that if they found such facts to have existed, they could take them into consideration in determining the ownership of the property; but the court had no right to say “ they must find for the defendants.” The 10th instruction asked was —
“ If you believe from the testimony that the plaintiff told G. W. Todd that Zipp owned the property then on the farm, and she did not after that time, in good faith, purchase the same, you should find for the defendants, provided, you find that said property, its increase, or property with it traded for, is the same or a part of the property in dispute.”
Todd was the agent of Claflin & Thayer; and counsel presenting this case claim Mrs. Meiners was estopped, if the statements were made as set forth in the instruction, from claiming the property sued for. It is not alleged in the record that the statements were made to Todd previous to the accruing of the account against Zipp in favor of Claflin & Thayer; nor does the instruction state when the conversation occurred. “Estoppels in pais are upheld to prevent gross injustice in cases where one party, having rights in property, by representations or conduct in reference thereto, fraudulently induces another to part with value for that property, and thereafter insists on those rights to deprive the latter of both value and property.” Garithers v. Weaver, 7 Kas. 110,125. As Claflin & Thayer were never influenced or induced to part with their goods on such alleged statement, and never gave any credit or extension of pay ment thereon, the reason for holding Mrs. Meiners estopped thereby fails. The instruction was properly refused.
A. S. Dennison was introduced by the plaintiff as a witness in the .court below, and after testifying in chief as to serving the attachment, the property taken, the value thereof, and that Mrs. Meiners and Mr. Zipp were present at the time, on cross-examination was asked: “Was Zipp using or exercising any control over any property there on that day?” and was also asked, “ if Zipp was present on the day of the sale of the property?” The court, upon objections being made, refused to permit the witness to answer. We find no error herein. The first question was too general in its character, and did not refer to the property in dispute. The last question was incompetent, and wholly irrelevant to the issues presented. For like reasons the court committed no error in refusing the witness Rucker to answer the same interrogatories.
When Mrs. Meiners was upon the witness-stand, she was asked, on cross-examination, “How long was Zipp gone to Colorado ?” Also, “How long was he to be gone to Colorado, ifyouknow?” And, whether “ Gehart Deeters and you came over in the same passage.” The , A °- witness was not permitted to answer. - Owing to the claim of the witness to the property, the character of her alleged possession thereof, her relationship with the debtor, and the circumstances testified to by her on cross-examination as to giving her son-in-law money before he went to Colorado to buy stock with; that he did go to Colorado; that she brought with her from Germany over $1,200; that she knew Deeters; saw him on the vessel in which she came to New York, the court might have permitted the questions to have been answered. Indeed, we think it would have been better for the court to have overruled the objections thereto, and also many of the other objections to the questions propounded. The utmost latitude should have been given upon the cross-examination of this witness. But a trial court must have some discretion as to the admission and rejection of testimony, otherwise there would be no limit to an examination; and we cannot say in this case that such discretion was abused, or that any injustice was done to the plaintiffs in error.
Error is also alleged in the action of the court in permitting the following question and answer, while one Delia Fitzsimmons was being interrogated: “ Who was the owner of the property you have just described?” Answer — “Mrs. Meiners was controlling and directing the use of it,” etc. In the manner the question was answered we do not see that any conclusion of law was stated, nor that the witness understood that her opinion was desired other than as to the facts of the case. The reply was both intelligent and proper. The objection was properly overruled.
While A. W. McGill was being used as a witness for the defendants in the court below, he was asked, “Did she (plaintiff) testify in this case at the last term of court?” Objected to as irrelevant, and ruled out by the court. We think as a preliminary question this interrogatory was proper and pertinent; and if plaintiffs in error had affirmatively shown by the record that the purpose of the question was to show statements made by Mrs. Meiners at the previous term of the court, we should hold the court committed error in refusing such question to be answered. But taking the whole record together, we come to the conclusion that such question was asked to bring out before the jury the fact that Mrs. Meiners did not testify “in the case at the last term of the court;” and as the purpose of the inquiry was to introduce an immaterial issue in the case, we think no error was committed in sustaining the objection.
Error is also claimed because the property was valued by the jury at $386, and the damages assessed at $21.19. The petition states the property to be worth $431. Several witnesses testified to the value of each article sued for, and taking the different values sworn to, the jury found the same worth the amount returned in their verdict. It was their province to weigh the testimony, and as sufficient evidence was pre sented to sustain the verdict it will not be set aside because the jury affixed the highest value to each article.
The court instructed the jury, “if their verdict was for the plaintiff, they should find the value of the property in controversy, and assess to plaintiff as damages seven per cent. interest per annum thereon from the commencement of the action to the present time.” The jury, under the instruction, ascertained the interest on the actual value of the property at $21.19. The attachment was served on March 4th 1874, and this suit was commenced on the 7th of the same month. Interest should have commenced from the time the property was wrongfully taken. Still, in the form in which it was given, the plaintiffs in error suffered no injury. In an action of replevin, in the absence of fraud, malice, negligence, oppression, or in the absence of proof of the value of the use of the property, or of special damages, the measure of the plaintiff’s damages for the detention of the property by the defendant is the interest on the value of the property for the time it is wrongfully detained. Bell v. Campbell, ante, page 213; Yandle v. Kingsbury, ante, p. 197; Ladd v. Brewer, ante, p. 209; Blackie v. Cooney, 8 Nevada, 41; Berthold v. Fox, 13 Minn. 501; Mayberry v. Cliffe, 7 Caldwell, (Tenn.) 117; Wood v. Braynard, 9 Pick. 322; Allen v. Fox, 51 N. Y. 565.
The court below rendered judgment, “that the said plaintiff Maria E. Meiners have and recover of and from the said defendants Alfred Palmer, sheriff, A. S. Dennison, under-sheriff, and Claflin & Thayer, return of the property replevied in the action, arid in case the defendants fail to return to said plaintiff the said property, then and in that case the plaintiff have and recover of and from said defendants,” etc. Claflin & Thayer were not parties to the action. They could have be'en made defendants in lieu of Palmer and Dennison, upon proper proceedings being had in accordance with §§ 43 and 44 of the code, or they could have been substituted for the officers under § 45 of the code. But as no action was taken to make them defendants, the court erred in ordering them to return the property in controversy, and in rendering judgment against them. Hall v. Jenness, 6 Kas. 365; Furrow v. Chapin, 13 Kas. 112.
This case is remanded with instructions to the court below to reverse the judgment as to Claflin & Thayer, and to affirm the same as to Palmer and Dennison.
The costs in this court must be divided between Palmer and Dennison plaintiffs in error, and Maria E. Meiners defendant in error.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The only question presented in this case is, whether a sub-contractor, under the provisions of the act relating to liens of mechanics and others, (laws of 1872, pp. 294, 297,) can secure a lien upon a public school-house erected by a school district. We answer in the affirmative, and refer to the recent case of Wilson v. School District, (ante, p. 104,) as containing our reasons for the conclusion herein, and for a full discussion of the subject.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal by garnishee defendants from a judgment rendered against them and in favor of the plaintiffs in garnishment proceedings.
Before we reach the merits of the appeal we are confronted by the motion of appellees to dismiss the appeal on two grounds. Appellees first suggest that the appellants have failed to abstract the record in conformity with the rules of this court. Our attention has been called to the fact that none of the testimony which was presented to the trial court has been abstracted, and that the chattel mortgage, the validity of which was one of the main issues in the case, has not been presented in the abstract. Neither are any of the pleadings found in the record. There is much merit in appellees' contention. The abstract of the record would compel us to materially restrict the extent of our review, if not prevent it entirely.
The second ground raised by appellees, in support of their mo Ron to dismiss the appeal, goes to the jurisdiction of this court and definitely challenges the right of appellants to be heard on appeal with respect to any issue. The facts pertinent to the question may be briefly stated.
The three appellees, Midwest Lumber Company, Lee Hardware Company and Salina Supply Company, filed separate actions against the defendant, Cecil Lorimor. The appellants, O. E. Banks and Roy Banks, were brought in as garnishees in each of the acRons. The pleadings are not contained in the record before us. The issues can only be surmised from the judgment of the trial court. The three cases were consolidated for trial. The Rial court found that the garnishees had a liability to Lorimor in the sum of $3,140.14 which was subject to garnishment. Judgment was rendered decreeing that the sum be prorated and paid to the three appellees. Again the record does not disclose what judgments were rendered against the principal defendant Lorimor in the three consolidated cases. We must assume that such judgments were rendered.
The notice of appeal was directed only to the three plainRffs, appellees here. The noRce of appeal was not served on the principal defendant. The appellees contend that the principal defendant is a necessary party on appeal inasmuch as he was an “adverse party,” as that term is used in G. S. 1949, 60-3306, which in part provides: “. . . A copy of such noRce must be personally served on all adverse parRes whose rights are sought to be affected by the appeal, and who appeared and took part in the trial, or their attorneys of record; . . .”
This court, in a long line of decisions, has held that an adverse party in a civil acRon on whom a noRce of appeal must be served, under the provisions of G. S. 1949, 60-3306, is a party to the litigaRon, to whose interest it is that the judgment of the trial court be upheld, and who is interested in opposing the relief sought by appellant.
The matter was fully discussed in National Reserve Life Ins. Co. v. Hand, 188 Kan. 521, 363 P. 2d 447, and again in Graham v. Barber, 192 Kan. 554, 390 P. 2d 23. In the opinion in the Graham case, just decided, the recent decisions on the questton are compiled. It would serve no useful purpose to cite them again here.
The specific question before us was decided in Protzman v. Palmer, 155 Kan. 240, 124 P. 2d 455 where it was held:
“An adverse party in a civil action on whom notice of appeal to the supreme court must be served (under G. S. 1935, 60-3306) is a party to the litigation, to whose interest it is that the judgment of the trial court be upheld, and who is interested in opposing the relief sought by appellant.
“The record in a garnishment action examined and held, that in view of the facts narrated in the opinion, failure of appellant, the garnishee defendant, to serve notice of appeal on the principal defendant as well as on the plaintiff requires a dismissal of the appeal.” (Syl. 1 and 2.)
In the absence of anything in the record to the contrary, it must be assumed that the principal defendant is interested in having the judgment of the trial court, holding that the garnishee is indebted to him in the sum of $3,140.14, affirmed. He is interested in opposing the relief sought by appellant and is therefore an adverse party. Since all essential parties are not joined on appeal, this court has no jurisdiction.
Having reached the conclusion that the appeal must be dismissed, it is unnecessary to discuss further the first ground raised by appellees’ motion to dismiss the appeal, i. e., failure to file a sufficient abstract.
The appeal is dismissed.
approved by the court.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment foreclosing a mechanic’s lien.
The record discloses no serious factual dispute.
Defendant Jensen was the owner of a building site in Shawnee County. In January, 1961, he entered into a brief written contract with William Taylor for the construction of a new home on the site. Taylor was to provide various materials and services including the construction of a foundation and other concrete work. Plaintiff, as a subcontractor, orally agreed with Taylor to furnish the labor and materials and pour the concrete. He was to be paid on a linear foot basis. The agreement contained no specifications or instructions as to how the cement work was to be done.
In February, plaintiff poured the footings and foundation walls. On March 9, 1961, it completed pouring the flatwork. Plaintiff removed all its forms within 3 or 4 days. On March 27, 1961, it sent a man to the premises to check the window openings, do patch work and to break off “spacer-ties,” pieces of steel strap that ex tend through the forms. The man found no work to be done on the windows and no patch work to be done. He did break off some spacer-ties.
Jensen paid Taylor the balance due April 27, 1962. At that time Taylor informed the defendant that he had not paid the plaintiff.
Taylor did not pay plaintiff for the work and on May 24, 1961, it filed a mechanic s lien statement. Plaintiff learned in April, 1961, that Jensen had paid Taylor but did not contact Jensen concerning payment because Conroy, plaintiff’s president, was trying to save Taylor embarrassment. Plaintiff had a notice to Jensen prepared and signed at the time it filed the lien statement but did not mail the notice to him until July 9, 1961. Defendant Jensen received it on July 11, 1961. He did not learn until that date that Taylor had not paid plaintiff and that the mechanic’s hen had been filed.
On May 4, 1962, the plaintiff filed an action for judgment against Jensen and Taylor and to foreclose the mechanic’s lien. The petition demanded judgment in the amount of $2,690.65, the amount of labor and material furnished, plus interest from April 1,1961, and for an order directing the foreclosure of the lien and the sale of the property to satisfy the judgment.
The defendant Jensen answered alleging that the lien was not filed within the time required by statute and that he received no notice that plaintiff had not been paid and received no notice that a lien had been filed until July 11, 1961. He further alleged that he had been prejudiced by plaintiff’s action in withholding notice of filing the lien, as he was prevented from taking timely action to reach the funds and assets of Taylor, the general contractor. The record does not show any answer by Taylor.
The lower court rendered judgment in conformity with the demand in the petition against Jensen and judgment in personam against Taylor.
The defendant, Jensen, has appealed.
The appellant contends that the appellee did not act with reasonable diligence in serving notice of the filing of the mechanic’s lien on him.
We are forced to agree. The statute relating to mechanic’s liens provides for the perfection of a lien by fifing a lien statement with the designated information within 60 days after the date on which material was last furnished or labor performed, . . and by serving a notice in writing of the filing of such a lien upon the owner of the land: . . /’ (G. S. 1961 Supp., 60-1403.)
This court has announced the rule that since the statute fixes no time in which the notice must be served, a reasonable time is permitted. What constitutes a reasonable time is a matter to be determined by the trier of the facts under the circumstances in each particular case.
In Lumber Co. v. McCurley, 84 Kan. 751, 754, 115 Pac. 590, it is stated:
“The statute fixes no time within which notice shall be served. Therefore a reasonable time is contemplated. What time is a reasonable time in a given case must depend upon all the circumstances. In the case of Deatherage v. Henderson, 43 Kan. 684, the opinion reads:
“ ‘Statutes relating to liens for mechanics and materialmen should be liberally construed so as to protect, as far as possible, within the terms of the statute, the rights and equities of such persons. ... A more reasonable construction of the statute would be, to give the subcontractor a reasonable time, after filing his lien, to furnish a copy thereof to the owner or agent of the premises. What would be a reasonable time must be determined by the court or jury trying the case under the attending circumstances. But the subcontractor must be diligent in serving his notice after filing his lien/ (p. 690.)”
In Miller v. Bankers Mortgage Co., 130 Kan. 543, 547, 287 Pac. 618, this court again considered the matter and summarized the facts in the two earlier cases which were the basis for the decisions:
“. . . This objection applies only to one of the three liens here involved, viz., that of the plaintiff, which was filed March 12, and the written notice was served April 21, after a delay of forty days. Two Kansas cases are cited by both parties as holding the time intervening should be reasonable considering all the facts and circumstances. In the earlier one, Deatherage v. Henderson, 43 Kan. 684, 23 Pac. 1052, the time intervening was only eleven days, and the court said:
“ ‘What would be a reasonable time for the service of the notice must be determined by the court or jury trying the case, considering all of the attending circumstances/ (Syl. f 3.)
“In the later case, Lumber Co. v. McCurley, 84 Kan. 751, 115 Pac. 590, the time intervening was 137 days and the court took into consideration the fact that the defendants knew and understood about the claims not having been paid; they had the contractor check them over to see if they were correct: they had conversations with the claimants, talked about settlement, and were in the same condition financially when notices were served as when the liens were filed. The court said:
“ ‘It clearly appeared that the school district suffered no injury whatever from the failure to receive earlier formal notice. Under these circumstances it cannot be said that the trial court erred in holding that the school district had no reason to complain, and that the notices were served in time.’ (p. 755.)
“The facts in this case were very similar except as appellant calls our attention to a difference as to the time when the conversations were had. In the case just cited some of the conversations were after the liens were filed, while in the case at bar all the conversations were before the filing of the lien, the last one immediately before the lien was filed, at which time the company was informed that plaintiff claimed a lien and asked the mortgage company not to pay any money to the contractor, and nothing more was paid. We see no reason why the ruling of the trial court should not be sustained, in following the two earlier decisions, when the mortgage company was fully informed orally of the situation and it suffered no injury whatever from the failure to receive an earlier formal statutory notice.”
The factual situation in the cases just mentioned are much different from the facts and circumstances in the present case. In those cases, the owner had notice that the mechanic’s lien had been filed, or was to be filed, and the parties were negotiating for a settlement of the controversies.
In the present case the landowner had no notice that the lien had been filed nor that the subcontractor had not been paid after Taylor was paid in full. The subcontractor intentionally concealed such facts from the owner. Conroy, the president of the appellee, testified that “as far as I know” the owner did not have actual notice that the lien had been filed until July 11, 1961. He further testified:
“. . . I was trying to save Mr. Taylor embarrassment because I knew that Mr. Jensen had paid Mr. Taylor, and I thought maybe Mr. Taylor could pay me and Mr. Jensen wouldn’t have to be bothered with it.”
The subcontractor was concealing from the owner the fact that he had filed the lien so as not to embarrass the general contractor. This is far from a showing of reasonable diligence in notifying the owner. Although it had the notice to the owner prepared and signed when the lien was filed May 24, 1961, it did not mail the notice until July 9,1961.
It would appear that the able trial judge erroneously concluded that the written notice was served on the owner within a reasonable time because he erroneously found that, “. . . the evidence establishes a conversation was had between plaintiff’s employees and Mr. Jensen in regard to the filing of the mechanic’s lien.” The evidence is all to the contrary. The conversations had by appellee’s employee, Conroy, the president, were with Taylor, the general contractor, not Jensen, the owner.
In Clark Lumber Co. v. Passig, 184 Kan. 667, 673, 339 P. 2d 280, it was stated:
“Equitable considerations do not ordinarily give rise to a mechanic’s lien. . . . Being created by statute, a mechanic’s lien can only arise under the circumstances and in the manner prescribed by the statute. It has been said a lien claimant must secure a hen under the statute or not at all. (Doane v. Bever, 63 Kan. 458, 65 Pac. 693.) . . .”
In Jones v. Lustig, 185 Kan. 208, 341 P. 2d 1018, it was held:
“There is no privity of contract between a subcontractor and an owner, and a subcontractor can only obtain a lien by compliance with statutory provisions. It is not enough that he has furnished the material and filed his lien, but service of notice upon the owner is one of the necessary steps. Without such notice he obtains nothing. . . .” (Syl. 1.)
We are forced to conclude that withholding notice from the owner by a subcontractor, of the filing of a mechanic’s lien, for a period of 47 days in order not to embarrass the general contractor, precludes a finding of diligent service of notice within a reasonable time.
What has been said renders unnecessary a consideration of the further contention that the mechanic’s lien was not filed in time.
The judgment is reversed with instructions to render judgment for the defendant Jensen.
APPROVED BY THE COURT.
Jackson, J., not participating. | [
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The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from a decree in a declaratory judgment action. The action sought a determination of the proper distribution of the landowner’s one-eighth royalty, under a producing oil and gas lease, as between a life tenant and the remaindermen.
Neither the facts nor the issues are in dispute. They may be briefly stated.
Henry Von Lintel owned the Northeast Quarter (NE/4) of Section Two (2), Township Ten (10), Range Twenty-six (26), in Sheridan County, Kansas. On March 22, 1955, Henry Von Lintel and Clementina Von Lintel, his wife, executed an oil and gas lease covering the land described. Henry Von Lintel died July 12, 1957, leaving a will dated October 31, 1955, which devised his property to certain of his children, subject to the interest of his wife, Clementina Von Lintel, “to have, hold, manage, and control the same and receive all the rents, income and profits therefrom to her use and benefit for and during her life.” Sometime in June, 1960, after the admission of the will to probate, production was obtained under the oil and gas lease.
The plaintiff, the assignee and operator of the oil and gas lease, brought this action, alleging in detail the facts above stated, requesting the district court to adjudicate the rights of the royalty owners to the one-eighth royalty accrued and accruing under the lease, and to render a declaratory judgment as to such rights and obligations. Attached to the petition was a copy of the will but it contains no language that will aid in the determination of this controversy.
The remainderman answered claiming that all of the landowner’s royalty should be deemed principal under the will of Henry Von Lintel; that it should be invested; that the income therefrom should be. paid to the life tenant during her natural life, and that upon her death the principal should be distributed to the remaindermen.
The life tenant answered claiming that all of the proceeds of the one-eighth royalty which had accrued or may accrue during her lifetime belong to and should be paid to her.
The case was presented to the trial court on the undisputed facts alleged in die pleadings which we have abbreviated.
The district court entered judgment decreeing insofar as material to this controversy:
“That the defendant, Clementina Von Vintel, is entitled to all of the one-eighth (l/8th) royalty under the present existing oil and gas lease . . . during the lifetime of the said Clementina Von Lintel, and the same be and hereby is assigned to the said defendant, Clementina Von Lintel, for and during her lifetime; That all of the one-eighth (l/8th) royalty that has accrued, or will accrue, under said lease, shall be paid to the said Clementina Von Lintel forthwith by the said plaintiff herein, and shall further be paid as the same accrues during the lifetime of the said Clementina Von Lintel.”
The plaintiff, the producer under the oil and gas lease, being interested only in to whom it should pay the one-eighth royalty has not participated in the appeal. The defendants remaindermen, hereinafter designated as appellants, have appealed challenging the decision of the district court. The defendant, the life tenant, hereinafter designated as appellee, has appeared supporting the decision of the district court.
' Although the answer may be difficult, the contention of the parties on appeal may be simply stated.
The appellee contends that, under the rule announced by this court, the life tenant, in the absence of a contrary intention manifested by the instrument creating the life estate, is. entitled to all royalties from wells brought into production after the commencement of the life estate but under authority' granted, through lease or otherwise, by the person who created the life estate.
The appellants contend that regardless of the rule previously existing in this state the legislature in 1951 by the enactment of the Uniform Principal and Income Act, particularly G. S. 1961 Supp., 58-909 pertaining to disposition of natural resources, set up a different rule which now governs the matter. The appellee answers with the suggestion that the Uniform Principal and Income Act did not purport to change the existing Kansas law.
The general rule followed by this court is stated in 31 C. J. S. Estates § 42 beginning on page 78 as follows:
“Under the open mine or open well doctrine, when not expressly precluded, a life tenant may work or have operated a mine, quarry, or well, opened before the creation of his estate, even to exhaustion; and not only for his own use but for profit; and is entitled to all proceeds derived from such operation without being obliged to make provision for any fund to offset depletion. The rationale of the open mine doctrine is that the owner of the previous estate by opening mines on the land impresses it with that character of use and enjoyment, and, in the absence of a provision to the contrary in the instrument creating the life estates, manifests an intention that the life tenant may likewise use and enjoy the land.”
The above statement covers the situation where production of oil or gas or other minerals existed on the land at the time the life estate took effect. The statement continues covering the situation where the settlor authorized the development before the life estate took effect but development did not take place until after the life estate came into being. The statement reads:
“Where the owner of a preceding estate of inheritance authorizes a mine or well to be opened or drilled on his land, and such mine or well is not opened or drilled until after his death, the mine or well will be considered an open mine or well as of the date of the owner’s death, and the life tenant is entitled to receive the royalties as issues and profits of the land. Mining by the life tenant will be allowed if the former owner of the fee has impressed on it the character of mining land, by executing an enforceable lease for that purpose prior to the commencement of the life estate, although no mines have been opened thereunder until after the commencement of the life estate. Where an oil or gas lease has been executed prior to the inception of the life estate, the life tenant is entitled to all accruing royalties although actual drilling operations do not commence until after the inception of the life estate. If a lessee of an oil and gas lease enters after lessor’s death and drills and produces oil and gas, the wells will be regarded as open at lessor’s death, and the life tenant will be entitled to the rents and profits reserved to lessor, accruing therefrom, during the life tenancy . . .” (p. 79. See, also, 33 Am. Jur. Life Estates Remainders, etc., § 330, p. 834.)
The trade term “open mine or open well doctrine” as used in the quotations simply means that a mine is being operated or an oil or gas well is producing. The term has also been extended to cover a situation where the production was authorized by the landowner before the life estate was created even though production had not yet commenced.
As one of the authorities for the above statement, the author cites Benson v. Nyman, 136 Kan. 455, 16 P. 2d 963 where this court held:
“While a life tenant under a will may not develop an oil and gas property to the deprivation of remaindermen, such rule does not apply where all developments were made under and by virtue of the provisions of a lease made by the landowner in his lifetime with a third party as lessee.” (Syl. 2.)
This court again recognized the general rule and distinguished between an oil and gas lease made by the settlor and one made by the life tenant in Burden v. Gypsy Oil Co., 141 Kan. 147, 40 P. 2d 463 where it held in syllabus 5 as follows: “A life tenant may not develop an oil and gas property to the deprivation of the remaindermen where the development was not begun or authorized before the commencement of his life estate.”
This court again recognized the rule in Pedroja v. Pedroja, 152 Kan. 82, 102 P. 2d 1012, where it stated on page 90 of the opinion:
“. . . Based on finding five, the court held that the life tenants were entitled to share in the royalties from leases executed by the testator in his lifetime, but that on the leases executed subsequent to his death, the royalties therefrom are to be invested and the life tenants are entitled to the income from such investments. The correctness of the rule is not questioned . . .”
Those who desire to research the general rule above announced as applied in other states may see Mairs v. Trust Co., 127 W. Va. 795, 34 S. E. 2d 742; In re Shailer's Estate, Okl., 266 P. 2d 613; Youngman v. Shular, 155 Tex. 437, 288 S. W. 2d 495, and Barton v. Warner, (Tex. Civ. App.) 142 S. W. 2d 303.
The Kansas cases cited above were decided prior to the enact ment of the Uniform Principal and Income Act in 1951. This court has not had occasion to pass upon the effect of the act on the general rule as previously announced by this court. Neither have we found any cases in which the courts of other states have had occasion to pass on or interpret the provisions of the act and none have been cited in the briefs. The provision covering disposition of income from natural resources is to be found in G. S. 1961 Supp., 58-909, which provides:
“Where any part of the principal consists of property in lands from which may be taken timber, minerals, oils, gas or other natural resources and the trustee or tenant is authorized by law or by the terms of the transaction by which the principal was established to sell, lease or otherwise develop such natural resources, and no provision is made for the disposition of the net proceeds thereof after the payment of expenses and carrying charges on such property, such proceeds, if received as rent on a lease, shall be deemed income, but if received as consideration, whether as royalties or otherwise, for the permanent severance of such natural resources from the lands, shall be deemed principal to be invested to produce income. Nothing in this section shall be construed to abrogate or extend any right which may otherwise have accrued by law to a tenant to develop or work such natural resources for his own benefit.” (Emphasis supplied.)
It would appear that the statute only attempts to cover a situation where the trustee or life tenant makes the lease or otherwise develops the natural resources. The situation where the settlor of the life estate has made the lease or otherwise developed the natural resources is noticably omitted.
The uniform principal and income act was adopted by the National Conference of Commissioners on Uniform State Laws in 1931, although not adopted by the legislature of this state until 1951. In the California Law Review, Volume 28, beginning at page 44, written in 1939, we find the following statement dealing with the section in question:
“Referring, then, first to section 10, which deals with the related topic of principal subject to depletion, the Act there adopts the orthodox rule that the returns from wasting assets are principal if the trustee is under a duty to convert, but where the trustee is under no duty to convert the returns are income. Section 9 abandons this test and lays down a rule apparently new, which applies only where ‘the trustee or tenant is authorized . . . to sell, lease or otherwise develop such natural resources . . .’ If these conditions exist — and no provision is made for cases where they do not exist — then the net proceeds, if received as rent on a lease, are income, but if received as consideration, whether as royalties or otherwise, for permanent severance, are principal . . .” (Emphasis supplied.)
A note by the committee drafting the Uniform Principal and Income Act throws some light on the scope and intent of the section in question. In the Hand Book of the National Conference of Commissioners on Uniform State Laws and Proceedings, 1928, at page 215, we find the following note made while the section was being developed:
“. . . In general a tenant is not entitled to make merchandise of standing timber. . . . Or to open mines or oil wells Eager v. Pollard, 194 Kentucky 276, 239 S. W. 39 (1922) reported with a note in 43 A. L. R. 808, 811; 36 L. R. A. N. S. 1108 citing cases.”
In the Pollard case cited in the above quotation it is stated:
“. . . Royalties derived from oil wells opened up upon land after the death of the owner and not in pursuance of a contract executed by him, usually are considered as part of the corpus of the estate and not as income therefrom as between life tenants and the remaindermen. Crain v. West, supra; Meredith v. Meredith, 193 Ky. 192.
“Mineral wells that are opened up after the death of the fee owner, but in pursuance of an express or implied power conferred by his will are not distinguishable from those opened after his death in pursuance of a contract, and in several such cases royalties realized therefrom very properly, it seems to us, have been held in other jurisdictions to be income. See Thornton on Oil & Gas, vol. 1, section 301, and cases there cited.
“Rut this could not result of course where the testator by the will conferring the power provided otherwise with reference to the disposition of the funds derived thereunder.” (l. c. 278.)
It is apparent that the committee had the general rule before it and was considering only the situation where the development or production was not authorized before the life estate came into being. If the committee was following the Pollard case it could not have intended to include a situation where the right to develop and produce was authorized by the landowner before the life estate was in being. The case on which they were relying for their authority would be to the contrary.
We are forced to conclude that the rule announced by this court to the effect that, “while a life tenant under a will may not develop an oil and gas property to the deprivation of remaindermen, such rule does not apply where all developments were made under and by virtue of the provisions of a lease made by the landowner in his lifetime with a third party as lessee,” has not been changed or affected by the provisions of G. S. 1961 Supp., 58-909.
In the case under consideration the development took place under a lease made by the landowner before the life estate came into being. The proceeds from the one-eighth royalty therefor belong to the life tenant.
The judgment is affirmed.
approved by the court. | [
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|
The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment granting a peremptory writ of mandamus commanding the Commissioner of Insurance to issue a life insurance agents license.
On the 17th day o£ January, 1963, the plaintiff, Paul Holmstrom, filed his petition which, in addition to formal and procedural matters leading to the complaint, stated:
“Defendant Commissioner’s actions are arbitrary, capricious, and unlawful in his refusal to issue a license to plaintiff as above stated and in that:
“A. He has failed, neglected and refused to grant plaintiff any hearing whereby it could be determined if said Commissioner in fact had any valid cause or reason for refusing to issue a license or to malee any determination as to whether plaintiff was of good business reputation, had experience or training, or was otherwise qualified in the fife insurance line of business, or would be given immediate instruction concerning the provisions, terms and conditions of the policies or contracts plaintiff would be proposing to negotiate or effect, and whether plaintiff was reasonably familiar with the provisions, terms and conditions of the policies or contracts plaintiff was proposing to negotiate or effect;
“B. By setting forth unlawful, unreasonable, arbitrary and capricious requirements for the granting of a hearing, and making such requirements and conditions precedent when he, the defendant, knew he had no authority to do the same, and when he knew, or should have known, that plaintiff would be unable to secure compliance by his requisitioning company;
“C. In arbitrarily, capriciously and unlawfully stating that he, the Commissioner, was not satisfied that plaintiff met the requirements for the issuance of a license pursuant to G. S. 40-241, when said Commissioner knew, or should have known, that said plaintiff was in fact fully qualified, and in making such purported general reason for refusal to license without any basis in law or in fact.”
The prayer of the petition reads:
“Wherefore, plaintiff prays this Honorable Court to award against the defendant an order commanding defendant to issue a license to plaintiff as an insurance agent for Franklin Life Insurance Company, and to adjudge the defendant to pay the damages which the plaintiff may have sustained, and the costs in this case, including a reasonable attorney’s fee, and such other and further relief as he is entitled to in equity.”
On January 17, 1963, the district court issued an order directing the defendant, the Commissioner of Insurance, to issue the license or appear and show cause on January 24, 1963. On the date mentioned the Commissioner appeared and moved to vacate the show cause order because of the insufficiency of the petition to state a cause of action for numerous reasons. The motion was overruled. The Commissioner then filed his answer which denied all but the formal parts of the petition and alleged:
“Further answering defendant specifically denies that he has acted arbitrarily, capriciously or unlawfully in the premises, or that plaintiff is entitled to recover herein for any damages which plaintiff may have sustained, for the cost of the case or attorney fees. Defendant specifically alleges that the business of life insurance is effected with public interest; that the legislature has given to the Commissioner of Insurance the responsibility of supervising, controlling and regulating life insurance companies and their agents with broad discretionary authority in the licensing of such agents and supervision of insurance business in order that the public may be protected; that defendant’s actions in the premises have been wholly in good faith and taken in the discretionary authority vested in him in the administration of insurance laws of the State of Kansas. . .
Plaintiff made an oral motion to require the answer to be made definite and certain by setting forth the grounds, reasons and facts upon which the defendant based his conclusion that he had not acted arbitrarily, capriciously or unlawfully, hut had acted wholly in good faith. The trial court permitted the defendant to amend his answer by adding the following:
“That the Commissioner upon due consideration of the application of plaintiff for a life insurance agent’s license determined that the plaintiff was unlicensable in that said plaintiff was not qualified for such a license under the applicable laws, rules and regulations of the State of Kansas.”
The plaintiff renewed his motion to make definite and certain which was overruled. The case was set for trial on the merits, to commence February 1,1963.
The case proceeded to trial and at the close thereof, February 8, 1963, the trial court took the matter under advisement. On February 14,1963, it concluded:
“The Court, after a full hearing on the merits of this matter, and after carefully considering all of the evidence, is of the opinion that with respect to Mr. Holmstrom that he should be granted a license to sell insurance within the State of Kansas, and that the actions of the Insurance Commissioner in denying such license go beyond his lawful discretion and are arbitrary and capricious, and a peremptory writ of mandamus should issue herein.”
A peremptory writ of mandamus followed, which decreed:
“Now, Therefore, in order that full and speedy justice may be done in the premises in behalf of said plaintiff, you, Frank Sullivan, Commissioner of Insurance, State of Kansas, are hereby commanded and enjoined immediately upon the receipt of this Writ to issue to plaintiff Paul Holmstrom a license as a fife insurance agent to sell life insurance in the State of Kansas for and on behalf of Franklin Life Insurance Company.”
The defendant has appealed alleging certain trial errors and contending that the court erred in holding the actions of the defendant in denying plaintiffs application for license was beyond defendant’s lawful discretion and was arbitrary and capricious, and in entering its order of February 14, 1963, granting plaintiff a peremptory writ of mandamus.
The plaintiff has filed a cross appeal challenging certain trial rulings and contending that the court erred in failing to require defendant to make his answer definite and certain by setting forth the grounds, reasons and facts upon which defendant refused to issue plaintiff a license, and in ruling that Section 40-241, General Statutes of Kansas, 1949, was constitutional.
On February 21, 1963, this court, on application of appellant, issued an order in which the judgment of the district court granting the peremptory writ of mandamus was stayed until further order of this corut.
The facts material to the determination of the issues will be stated.
Formerly the appellee had been licensed as an agent to sell life insurance for the Green Shield Life Insurance Company. On November 19, 1962, the Franklin Life Insurance Company, through its supervisor of agent’s licenses, addressed a letter to the appellant requesting a license for the appellee as its agent to sell life insurance. The necessary forms were enclosed, including the application of the appellee to be licensed as an agent.
On December 4, 1962, the appellant addressed a letter to the appellee which reads:
“The Kansas Insurance Department has received the Application for Agent’s License and Standard Requisition filed in your behalf by the Franklin Life Insurance Company of Springfield, Illinois.
“After examination of the records of this office and consideration of the same together with other information possessed by this office, the Commissioner of Insurance has determined that the conditions of Kan. G. S. 1949, 40-241, are not satisfied as concerns the request that you be licensed for Franklin Life. You are therefore notified this date of the Commissioner’s determination, and appropriate explanation of this finding is being forwarded concurrently to the Franklin Life Insurance Company of Springfield, Illinois.”
On December 7, 1962, the appellee visited the appellant’s office and talked with one of the department’s attorneys. The appellee requested information as to “what he had to do.” He was given the names and addresses of certain people to whom he had sold Green Shield Life Insurance Company policies and who had filed complaints against him. He was informed that it would not be unwise for him to talk to these people and if they had any clarifying or correcting statements, such statements should be submitted for further consideration.
On December 28, 1962, the appellee again called on the department’s attorney. We are informed of the conversation as follows:
“Q. All right, would you state to the Court what the general nature of that conversation was?
“A. Well, he came in and he had some statements that he had taken from the names that we had given him, people who had written us letters or people whose names had been given to us by other people, and he presented these statements to us and said, Well, I went out and got them, here they are.’
“Q. All right, did you on that occasion tell Mi-. Holmstrom that he would be issued an agent’s license?
“A. No, I didn’t tell him that he would be issued a license, I told him that this information would be put in the file and brought to the Commissioner’s attention.”
On January 15, 1963, the appellant had occasion to consult with members of his staff concerning the appellee’s application for a license. We are informed:
“Q. What did you advise in that regard?
“A. After my staff had reviewed the file, because of the question still existing in regard to Mr. Holmstrom, the questions that had been raised by policyholders in the state, I suggested that they notify Mr. Holmstrom that if the licensing company wished to have a hearing, that they could call such a hearing and review the case in my office.
“Q. Now, sir, you testified to questions raised by policyholders in the state, to what were you referring at that time?
“A. The letters and affidavits that we had on file in the office, in his file.
“Q. Relating to what, sir?
“A. His activities as an agent.
“Q. Have these letters, in any respect, caused you to question the qualifications of Mr. Holmstrom for a license?
“A. They did.
“Q. Now, sir, have you at any time intentionally withheld a license from Mr. Holmstrom for the reason that he is — for the sole reason he was formerly a Green Shield agent?
“A. No—
“Q. Your offer to Mr. Holmstrom relating to a hearing, if his company would request a hearing and participate in the hearing and employ a court reporter, is that offer still open?
“A. Certainly is.”
On the same day, January 15,1963, the appellee again came to the appellant’s office and conferred with the staff’s attorney. He was informed of the appellant’s conclusion as to a hearing. The appellee made no complaint to the appellant that the terms under which a hearing on the application for a license would be held were unreasonable or burdensome, but two days later, January 17, 1963, filed his petition in the district court for relief in the form of mandamus.
Without considering the case on its merits we are confronted with a jurisdictional question. Was the action to compel the appellant to issue a license to the appellee premature?
Although not specifically called to our attention by the parties, this court will on its own motion note a jurisdictional question. (Riley v. Hogue, 188 Kan. 774, 365 P. 2d 1097; Farm Bureau Mutual Ins. Co. v. Barnett, 189 Kan. 385, 369 P. 2d 350; Alliance Mutual Casualty Co. v. Bailey, 191 Kan. 192, 380 P. 2d 413 and Hotchkiss v. White, 191 Kan. 534, 382 P. 2d 325.)
The statute (G. S. 1949, 40-243) providing for court relief on the refusal of the Commissioner of Insurance to issue an agent’s license to sell insurance states:
“Within sixty days after the revocation, suspension or refusal to license, the person aggrieved shall have the right to petition any court of record in this state to require said commissioner of insurance to show cause why the license should not be reinstated or issued.”
An examination of the record does not disclose that the appellant has refused to issue a license to the appellee. It rather discloses that the ruling on the application was pending on the appellant’s suggestion that a hearing would be held. The action lies only after the refusal to license.
There is yet another reason why this action is premature. A court should not take upon itself the responsibility of making discretionary and administrative decisions while the administrative officer is in the process of making the decision. The appellant had suggested a hearing. He had not as yet denied the application. Whether the suggested hearing was contingent on unreasonable conditions presents another question which will be considered later.
In Bohl v. Teall, 155 Kan. 505, 126 P. 2d 216, this court stated:
“It is well-settled law that courts may not, and do not, interfere with lawfully constituted administrative agencies in the lawful performance of their lawful duties. (Kansas City v. Utilities Commission, 103 Kan. 473, 176 Pac. 324; State Comm'n v. Wichita Gas Co., 290 U. S. 561, 78 L. Ed. 500, 504-505; Hayward v. State Corporation Comm., 151 Kan. 1008, 101 P. 2d 1041.) Any other policy would paralyze the administrative arm of government and substitute judicial for executive functions.” (p. 508.)
In Hayward v. State Corporation Comm., 151 Kan. 1008, 101 P. 2d 1041, it is stated:
“. . . The fundamental principle that courts have no right to interfere by injunction with administrative and legislative functions yet to be performed by the corporation commission, is well established. (State, ex rel., v. Flannelly, 96 Kan. 372, 386-387, 152 Pac. 22; Kansas City v. Utilities Commission, supra; State, ex rel., v. Capital Gas & Elec. Co., 139 Kan. 870, 888, 33 P. 2d 731; State Comm’n v. Wichita Gas Co., 290 U. S. 561, 78 L. Ed. 500, 504-505.) Cases involving completed administrative and legislative functions are not in point. . . .” (p. 1015.)
Until an order or determination of an administrative officer, agency, or commission is fully, finally and completely made, a writ of mandamus will not issue to compel a particular action. (State, ex rel., v. Flannelly, 96 Kan. 372, 386, 152 Pac. 22; State, ex rel., v. Mo. Pac. Rly. Co., 55 Kan. 708, 41 Pac. 964.)
We must conclude that the action was prematurely brought insofar as it sought to compel the Commissioner of Insurance to issue the license and the district court was without jurisdiction to make the administrative decision.
The question of the reasonableness of the requirements which the appellant placed on the holding of a hearing presents a more difficult problem.
Although the statute (G. S. 1949, 40-241) does not require the Commissioner of Insurance to hold a hearing before refusing to grant an insurance agent’s license, it cannot be denied that he has such authority under the broad powers granted by G. S. 1961 Supp., 40-102; G. S. 1949, 40-103 and 40-241, if he deems a hearing advisable and in the interest of justice. However, once the Commissioner of Insurance has suggested that a hearing is advisable or may be of benefit to the applicant, he cannot surround the right to be heard with such unreasonable terms and conditions as to make the hearing a burden on the applicant or an impossibility.
Even though a court may not take upon itself the determination of a matter which is left to the discretion of an administrative officer because it is not satisfied with the administrative procedure, it may direct that the administrative officer proceed under reasonable rules and in a reasonable manner.
In Butler v. Rude, 162 Kan. 588, 178 P. 2d 261, it is stated:
“Under a third heading the board contends that the court may not usurp the fact-finding authority delegated to it by the legislature, and in support it cites Bohl v. Teall, supra; Union Pac. Rld. Co. v. State Tax Comm., 145 Kan. 715, 68 P. 2d 1; Murphy v. Hobbs, 139 Kan. 799, 33 P. 2d 135; Brinkley v. Hassig, 139 Kan. 874, 289 Pac. 64, and other cases which it may be said support the contention. However, they do not control the present situation for, as has been observed, in dealing with the board’s first contention, the challenge is not to the power of the board to make rules generally, nor an attempt to interfere with its enforcement of lawful rules lawfully made, but to test the board’s authority and power to make the particular rule attacked.” (p. 594, emphasis supplied.)
As a prerequisite to a hearing the appellant required that the requisitioning company make application for the hearing and agree to pay the costs of a reporter to transcribe the proceedings. The appellee did not inform the appellant that the conditions which he placed on holding the hearing were unreasonable or impossible of performance. We do not approve of an applicant first maldng such objections to a court. However, the petition alleged that the appellant knew or should have known that the requisitioning company, Franklin Life Insurance Company, would not comply with the requirement that it ask for a hearing. A representative of the company testified that it would not request the hearing.
We are forced to conclude, under the facts disclosed by the record, that the rulings of the appellant as to the conditions on which the hearing would be held were unreasonable. The Commissioner, having suggested the hearing, should be directed to proceed to hold it, without unreasonable rules, conditions or requirements.
The appellee challenges the constitutionality of G. S. 1949, 40-241 for the reason that it vests discretion in the Commissioner of Insurance to grant or refuse an agent’s license without prescribing any rule of action. We do not agree with appellee’s contention.
It is well settled that the insurance business is a quasi public business and that it is so impressed with the public interest that a state under its police power may regulate all features of the business including the agents which sell the insurance to the general public. In 44 C. J. S. Insurance, § 85b (1), p. 589, the rule as applicable to licensing agents is stated:
“It may be required by statute that any insurance agent or broker doing business in the state shall have a certificate or license under state authority for the transaction of such business, and the legislature may provide for the refusal of a license for specified causes. Such statutes are valid as a proper exercise of the police power, constituting the regulation and control of a business affected with a public interest. . . .”
G. S. 1949, 40-241 provides the standards by which the qualifications of an insurance agent will be measured. It provides in part:
“If the commissioner of insurance is satisfied that the applicant for an agent’s license is of good business reputation and has had experience or training, or is otherwise qualified in said line of business, or will be given immediate instruction concerning the provisions, terms and conditions of the policies or contracts such applicant is proposing to negotiate or effect, and is reasonably familiar with the provisions, terms and conditions of the policies or contracts such applicant is proposing to negotiate or effect, the commissioner of insurance shall issue to such applicant an agent’s license to transact business in this state on behalf of the insurer certifying the applicant’s name. . .
Whether an applicant has (1) a good business reputation, (2) has had experience or training, or (3) is otherwise qualified in the line of business, is a sufficient yardstick by which to measure the right of the applicant to be licensed. The statutes need not outline the facts and evidence by which the standards of qualification will be determined.
We have examined the cases cited by appellee dealing with statutes from other states. The cases are not helpful because of the language in the statutory provisions. We are impressed with what the Supreme Court of West Virginia said in the case of Swearingen v. Bond, Auditor, 96 W. Va. 193, 122 S. E. 539:
“The statute before us in the instant case is quite different from those held to be invalid in the cases above referred to. There is no such absolute power given to the insurance commissioner as would warrant him to arbitrarily refuse to grant or revoke a license or certificate of authority to an insurance agent. Applicant must have the qualification of trustworthiness and competency in the insurance business; and the commissioner must find that he lacks these qualifications before he can refuse. ... It is not for the courts to question the wisdom of the legislature in fixing the qualifications of an insurance agent or whether it has adopted a wise method in determining whether an applicant is trustworthy and competent to engage in that business — a quasi-public business which is so intimately connected with the welfare of modem society. . . .” (p. 199.)
Under the conclusions reached there is no occasion to review the record for the purpose of determining whether the trial court observed the rule announced in Murphy v. Hobbs, 139 Kan. 799, 33 P. 2d 135, where it was held in the syllabus:
“The duties of the insurance commissioner in granting or revoking the license of a life insurance agent under R. S. 1933 Supp., 40-239 to 40-242 are purely administrative, and his findings are conclusive unless that power and authority is abused, in which event the party aggrieved may be afforded redress under R. S. 1933 Supp., 40-243 in a court of record by alleging and proving therein that such action of the commissioner or his assistant was arbitrary, corrupt, oppressive, prejudicial or in excess of authority.”
Neither is there any occasion to review the alleged trial errors presented by the appeal and cross appeal.
The judgment is reversed with instructions to the district court to deny the application for a peremptory writ of mandamus commanding the Commissioner of Insurance to issue a license to the plaintiff, but that it direct the Commissioner of Insurance to proceed with a hearing on the application of the plaintiff without unreasonable rules or conditions.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Parker, C. J.:
These appeals present the question as to when the statute of limitations commences to run against the owner of stolen grain who seeks recovery against an innocent purchaser.
Three separate cases were filed in the district court of Finney County by the same plaintiff against three separate defendants with petitions presenting substantially the same facts. The district court made the same ruling in each of the cases with respect to pleadings. Plaintiff filed three separate appeals from such rulings and three separate abstracts with this court. Thereupon counsel for the respective parties filed a joint motion requesting that the cases be consolidated for appellate review and, upon the granting of such motion, stipulated that the decision in Case No. 43,585 would control the decisions in Cases Nos. 43,586 and 43,587. Therefore we proceed in this opinion on that premise.
The controlling facts are disclosed by the amended petition, allegations of which will be highly summarized.
The plaintiff, Christensen Grain, Inc., owns and operates a public warehouse for the storage, purchase and sale of grain. During 1959, 1960, and the first part of 1961, a trusted employee stole grain from plaintiff’s public warehouse on numerous occasions. This grain, through the help of a farmer in the community, was sold by the employee and the farmer to grain elevators and feed yards in the vicinity, including the defendant, The Garden City Cooperative Equity Exchange. Plaintiff did not know that the grain was stolen or that part of it was sold to the defendant until May 2, 1961. The amended petition further alleges that written demand was made for the value of the grain on October 19, 1961, and prays for judgment for the value of the grain sold to the defendant plus interest. No claim is made in the amended petition that the defendant knew, or had reason to believe, the grain purchased by it was stolen grain or that fraud was involved in acquiring it.
With the amended petition in form, as heretofore indicated, defendant demurred thereto on the ground that pleading failed to state a cause of action. After a hearing the district court announced its ruling on the demurrer which, according to the journal entiy of record, reads:
“. . . The court, having heard the arguments of counsel, doth sustain said demurrer as to all of the various conversions therein alleged which occurred more than two years prior to the filing of this suit and doth overrule said demurrer as to all of said alleged conversions which occurred less than two years prior to the filing of this suit.”
Thereupon plaintiff perfected the instant appeal.
At the outset it may be stated that counsel for the respective parties, with commendable candor, have impliedly, if not expressly, conceded certain matters, both in their briefs and on oral argument, which materially simplify a proper understanding of the all-decisive issue here involved. These matters may be stated thus:
1. That the instant action is founded in tort, not on implied contract, and that the two-year statute of limitations (G. S. 1949, 60-306, Third.) applies.
2. That the appellee did not know, or had no reason to believe, that the grain in question was stolen an was in fact an innocent purchaser for value of such grain.
3. That, although the record is somewhat indefinite, the action was commenced in the district court during the latter part of October, 1961. With specific reference to this particular point it may be said our review of the record leads to the conclusion it was commenced on October 31,1961.
Notwithstanding what has just been stated specific dates are not important. The parties present a single question for determination, i. <?., when does the statute of limitations begin to run in an action to recover the value of stolen property from an innocent purchaser?
The appellant contends that the statute does not commence to run until the owner of the stolen property discovers the innocent purchaser to whom the stolen property was sold.
On the other hand the appellee contends that the statute commenced to run against the appellee at the time it committed the tort, i. e., made the innocent purchase of the stolen grain.
After careful consideration of all arguments advanced by the parties in support of their respective positions we are constrained to agree with appellee’s contention.
The applicable provision of the statute of limitations is to be found in G. S. 1949, 60-306, Third. It provides:
“Within two years: An action for trespass upon real property; an action for tatting, detaining or injuring personal property, including actions for the specific recovery of personal propertij; an action for injury to the rights of another, not arising on contract, and not hereinafter enumerated; an action for relief on the ground of fraud — the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.” (Emphasis supplied. )
An action for the taking of personal property (conversion) must be brought within two years from the time of the conversion. See Smith v. Bridgeport Machine Co., 151 Kan. 444, 446, 100 P. 2d 65; Preston v. Shields, 159 Kan. 575, 156 P. 2d 543.
The third subdivision of G. S. 1949, 60-306, contains but one ex ception, i. e., a cause of action for fraud shall not be deemed to have accrued until the fraud is discovered.
This court has held on numerous occasions that where the legislature has made a specific exception to a statute of limitations any exceptions not mentioned are excluded by implication.
In Railway Co. v. Grain Co., 68 Kan. 585, 75 Pac. 1051, we held: “The enumeration by the legislature of specific exceptions to a statute of limitations by implication excludes all others.” (Syl. ¶ 1.)
The above case was approved in Regier v. Amerada Petroleum Corp., 139 Kan. 177, 30 P. 2d 136, which reads:
"It is said that there is a radical difference of judicial opinion upon the subject, but the court determined that the rule adopted should be the one enforced in Kansas. In Baxter v. Krause, 79 Kan. 851, 101 Pac. 467, Railway Co. v. Grain Co. is cited with approval on the theory that the courts will not ingraft a new exception upon a statute of limitations, exceptions by implication being not favored. The case is cited again in Casper v. Lewin, 82 Kan. 604, 109 Pac. 657, wherein the case is referred to as follows:
“ Tt is the law in this state that when the language of a statute is plain and unambiguous there is no room left for a judicial interpretation which will change the effect of the language employed. (Ayers v. Comm’rs of Trego Co., 37 Kan. 240.) This principle has been applied in some striking instances. Thus, in Railway Co. v. Grain Co., 68 Kan. 585, the court refused to read into the statute of limitations an exception to meet the fraudulent concealment of a breach of contract.’ (p. 627.)
“In Rucker v. Hagar et al., 117 Kan. 76, 230 Pac. 70, the court said:
“ ‘Warranty sounds in contract, fraud sounds in tort, and liability predicated on breach of warranty is contract and not tort liability. The assertion that plaintiffs could sue on the contract of warranty within two years after discovery of the fraud must mean that they could sue on the contract of warranty within two years after discovery of the breach of warranty, and consequently does not state the law. The subject received careful consideration in the case of Railway Co. v. Grain Co., 68 Kan. 585, 75 Pac. 1051.’ (p. 79.)
“Later cases cited and approving the rule of Railway Co. v. Grain Co., supra, are Blitz v. Metzger, 119 Kan. 760, 241 Pac. 259; Emanuel Home v. Bergin, 127 Kan. 593, 274 Pac. 284; City of Coffeyville v. Metcalf, 134 Kan. 361, 5 P. 2d 807.” (pp. 182, 183.)
The same question was again discussed in Dougherty v. Norlin, 147 Kan. 565, 78 P. 2d 65. In that case a bond had been found and sold to an innocent third party. The owner sought to recover from the purchaser. There we said:
“Plaintiff further urges the statute of limitations could not begin to run until she discovered who had found the bond. The statute makes no exception as to ‘discovery,’ except in cases of fraud. We are not permitted to read other exceptions into it, and the fact a party does not know he has a cause of action does not prevent the running of the statute of limitations. (Regier v. Amerada Petroleum Corp., 139 Kan. 177, 183, 30 P. 2d 136.)”
“Appellant cites tire early case of Daniel v. McLucas, 8 Kan. App., 299, to the effect that discovery of lost or stolen property and a demand on an innocent holder for possession are necessary to start the running of the statute. That was an action for the recovery of the lost or stolen property. It was not an action in which the tort was waived and recovery of the proceeds of the sale was sought on the theory of an implied contract. It is also well to note the opinion took no notice whatsoever of the fact that in an action for the recovery of property taken or detained, the statute made no exception to the effect that the cause of action did not accrue until the discovery of its location. (G. S. 1935, 60-306, Third.) Under the allegations of the petition appellant’s ignorance of the location of the bond was not due to conduct of the appellee. No fraud or even concealment of the location of the bond having been pleaded in the instant case, the cause of action accrued upon the date of the conversion of the bond and not from the date of the discovery of its location by the owner. (Citing cases.)” (pp. 568, 569.)
In the case at bar the appellant’s cause of action against the appellee accrued when appellee innocently purchased the appellant’s grain from the thief causing the conversion.
The statute provides that an action for talcing personal property, a tort action for conversion, shall be commenced within two years. There are no exceptions. There would be no justification for this court adding the exception suggested by appellant to the effect that the statute of limitations does not commence to run until the owner of stolen property discovers the innocent purchaser to whom the stolen property was sold.
See Graham v. Updegraph, 144 Kan. 45, 58 P. 2d 475, where it is said:
. However, we still adhered to the rule announced in Becker v. Porter, supra, that the statute of limitations in an action for tort begins to run from the date of the tort and not from the date of he discovery of it. (See Railway Co. v. Dale, 68 Kan. 108, 74 Pac. 596.)”
For other Kansas decisions which throw some light on the question see Manka v. Martin Metal Mfg. Co., 153 Kan. 811, 113 P. 2d 1041; Meade v. Brosius, 158 Kan. 418, 147 P. 2d 716; and McCoy v. Wesley Hospital & Nurse Training School, 188 Kan. 325, 362 P. 2d 841.
Appellant relies almost entirely on Daniel v. McLucas, 8 Kan. App. 299, 55 Pac. 680, where it is held:
“Where personal property is sold to an innocent purchaser by one who has no rightful ownership or possession thereof, and said purchaser takes and retains open, notorious and exclusive possession thereof for more than two years before the owner learns of its whereabouts, held, that the owner is not barred by the statute of limitations from recovering said property.” (Syl.)
We are convinced the Daniel case does not properly state the law as pronounced by this court. The decision has been overruled by implication on many occasions. (See the cases heretofore cited in this opinion.)
Appellant suggests that the statute of limitations does not commence to run until demand is made on the purchaser of the stolen property. In its brief, without pursuing the subject further, it states:
“The appellant further contends that the Daniel case, supra, is authority for the proposition that a demand is necessary to start the running of the statute of limitations as against the rightful owners of property lost or stolen in the hands of an innocent purchaser.”
It is neither necessary nor required that we labor the foregoing contention. It suffices to say that the short and simple answer thereto is to be found in what has been said and held earlier in this opinion. To assume that, under the existing facts and circumstances, a demand was necessary as a prerequisite to the bringing of the present action does not create an exception to, nor does it avoid the force and effect of, the clear and unequivocal provisions of 60-306, Third, supra.
It must be conceded, as appellant insists, that the Daniel case appears to support its contentions. Even so, that case on the above point, and others previously discussed, does not state the law as pronounced by this court in repeated and more recent decisions. Therefore Daniel v. McLucas, 8 Kan. App. 299, 55 Pac. 680, should be and is overruled in its entirety.
What has been heretofore stated and held compels a conclusion the trial court did not err in sustaining the demurrer to the amended petition. This means that the orders and judgments from which appeals were perfected in Cases Nos. 43,585, 43,586 and 43,587 must be and are affirmed — and it is so ordered. | [
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The opinion of the court was delivered by
Fatzeb, J.:
This is an appeal from an order of the district court of Leavenworth County denying a writ of habeas corpus. The petitioner is presently confined in the Kansas State Penitentiary upon a conviction of murder in the second degree. (G. S. 1949, 21-402.)
On May 14, 1953, in the presence of his attorneys, Charles A. Vance and John F. Kaster, the defendant entered his plea of guilty on two counts of murder in the second degree. He was sentenced by the district court of Seward County to two concurrent terms of from 15 to 30 years imprisonment at hard labor in the Kansas State Penitentiary. The statutes under which the sentence was imposed were not set forth in the journal entry.
The appellant contends his sentence is not authorized by law and was imposed in violation of G. S. 1949, 62-1521, the indeterminate sentence law, in effect at the time the appellant was sentenced. Appellant also contends that because the journal entry does not recite the statutes under which the sentence was imposed, the sentence is void.
The pertinent part of G. S. 1949, 21-403, providing the penalty for murder in the second degree, reads: “. . . Those convicted of murder in the second degree shall be punished by confinement and hard labor for not less than ten years.” (Emphasis supplied.)
G. S. 1949, 21-109, provides in part:
“Whenever any offender is declared by law punishable, upon conviction, by confinement and hard labor for a term not less than any specified number of years, and no limit to the duration of such imprisonment or confinement is declared, the offender may be sentenced to imprisonment during his natural life, or for any number of years not less than such as are prescribed . . .”
The quoted provisions of the foregoing statutes have been in force in this state since 1868, and in a per curiam opinion filed in 1879 (State v. Pierce, 23 Kan. 153), this court held that those two statutes must be construed together. The Pierce case was also one where the defendant had been convicted of murder in the second degree. In the opinion it was said:
“A general assertion is made that §8, ch. 31, Comp. Laws 1879 (G. S. 1949, 21-403), is unconstitutional, and void. No reasons are given nor any argument presented in support of this view. Said section fixes the minimum penalty for those convicted of murder in the second degree, and the maximum penalty is fixed by §291 of the same chapter. (G. S. 1949, 21-109.) Secs. 8 and 291 are to be construed together. These sections are valid, and constitutional.” (1. c. 154.)
The point has not since been raised, but the decision is obviously correct and we reaffirm its holding. The rule stated is simple— where the statute prescribing the penalty provides only for a minimum term of imprisonment, the district court may order any sentence not less than the minimum prescribed.
The appellant’s contention that his sentence of confinement and hard labor in the Kansas State Penitentiary was imposed in violation of G. S. 1949, 62-1521, the indeterminate sentence statute, is not well taken. The short answer to the contention is that the statute expressly provides that it is inapplicable to the crimes of murder and treason.
G. S. 1949, 62-1516 expressly provides that upon a plea or verdict of guilty, a record thereof shall be made upon the journal of the court, which record, among other things, shall contain a statement of the offense charged, and under what statute; the plea or verdict and the judgment rendered or sentence imposed, and under what statute. This court has consistently held in a long line of decisions that the failure of the district court to comply with this provision with respect to enumerating the statutes under which sentence was imposed does not void the sentence. The defect is a formal one which may be corrected by a nunc pro tunc order. See Wilson v. Hudspeth, 165 Kan. 666, 198 P. 2d 165, certiorari denied 335 U. S. 909, 93 L. Ed. 442, 69 S. Ct. 410, rehearing denied 336 U. S. 911, 93 L. Ed. 1075, 69 S. Ct. 511; Craven v. Hudspeth, 172 Kan. 731, 743, 242 P. 2d 823, and Browning v. Hand, 184 Kan. 365, 366, 336 P. 2d 409, 361 U. S. 926, 4 L. Ed. 2d 240, 80 S. Ct. 295.
During oral argument we were advised that the journal entry has not been corrected to recite the statutes under which the judgment was rendered and sentence imposed. The Attorney General is directed to take proper steps in the district court of Seward County to make the journal entry comply in all respects with G. S. 1949, 62-1516 in accordance with the procedure outlined in Wilson v. Hudspeth, supra, p. 669. When the defect in the journal entry has been corrected, the Attorney General is further directed to file a certified copy of the nunc pro tunc order of the district court of Seward County with this court.
The record has been carefully examined and the appellant has failed to make it affirmatively appear that any error was committed by the district court of Leavenworth County in denying the writ of habeas corpus, and that judgment is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
The defendant (appellant) was convicted in the court below of issuing a worthless check in an amount in excess of $50 in violation of G. S. 1949, 21-554, and was sentenced to imprisonment in the Kansas State Penitentiary.
Pursuant to G. S. 1949, 21-554, which provides that it shall be unlawful for any person to draw, make, utter, issue or deliver to another any check on any bank or depository for the payment of money or its equivalent, knowing, at the time of the making, drawing, uttering or delivery of the check he had no funds on deposit in or credits with such bank with which to pay the draft upon presentation, complaint was filed on July 26, 1961, in the court of common pleas of Sedgwick county charging defendant with giving a worthless check to James Ray Distributing Co. in the amount of $1,232.91 drawn upon the East Side State Bank of Wichita.
Prior to the preliminary hearing defendant filed a voluntary petition in bankruptcy in the United States District Court for the District of Kansas. The insufficient fund check given by defendant, which constituted the basis of the complaint, was listed as one of defendant’s scheduled debts in the bankruptcy proceedings. The proceedings on the worthless check complaint were stayed until defendant’s final discharge in bankruptcy on February 5, 1962.
On April 27 a preliminary hearing was had and defendant was bound over to the district court for trial. An information was filed in the latter court charging the defendant with the issuance of the worthless check as hereinbefore related.
Prior to the trial on the information in the district court defendant filed an application to abate the action pursuant to G. S. 1949, 21-556, which provides, in substance, that in any case where a prosecution is begun under the provisions of the “worthless check” act, the defendant shall have the right, upon application made before trial, to have the action abated by showing to the court that he had an account in the bank upon which the check or draft was drawn thirty days next prior to the time the check was delivered, and that the check was not drawn upon the bank with the intent to defraud the party receiving it, and if the court shall so find, the action shall be abated and the defendant discharged upon paying into cowt the amount of such check and the costs in said case.
At the hearing on his application to abate defendant introduced a certified copy of his discharge in bankruptcy entered on February 5, 1962, and other evidence. The trial court found that at the time the check was given defendant had an account in the bank on which the check was drawn within thirty days next prior to giving the check and that defendant did not have the intent to defraud the payee at the time the check was issued. The court also found the defendant was not in a position to abate the check by paying the amount of the check and costs, and further found that under the authority of State v. Breitenbach, 190 Kan. 189, 373 P. 2d 601, defendant’s discharge in bankruptcy was not grounds for abatement of the action and overruled defendant’s motion to abate.
Subsequent thereto defendant waived his right to trial by jury and the case was tried to the court. The court found the defendant guilty and under the provisions of G. S. 1949, 21-555, sentenced him for the offense charged in the information. From an order overruling defendant’s motion for new trial and his plea in abatement defendant has appealed.
The two questions presented on this appeal are (1) whether a discharge in bankruptcy may be pleaded by an offender under the “worthless check” statute (21-554) as payment of the check in a proceeding authorized by section 21-556 and thereby secure an abatement of a criminal action and obtain his discharge, and (2) if a discharge in bankruptcy of the liability on the check does not constitute an abatement under section 21-556 of the “worthless check” act, then is the act in conflict with section 17 of the Bankruptcy Act and the Supremacy Clause of the Constitution of the United States.
The defendant is fully aware of our recent case of State v. Breitenbach, 190 Kan. 189, 373 P. 2d 601, which overruled our previous decision in In re Myers, 119 Kan. 270, 237 Pac. 1026; however, he asks us to re-examine the Breitenbach decision and reinstate the rule in In re Myers. We will not restate the facts in the Breitenbach case, but it may be said tihat they are practically identical with the facts in the instant case, especially insofar as they affect the rules of law therein enunciated.
In the Breitenbach case we stated we had no quarrel with the holding that a discharge in bankruptcy is the equivalent of payment of the civil liabilities of all the bankrupt’s provable debts (11 U. S. C. A. § 35; G. S. 1949, 60-3601, 3602) and further stated:
“The right to abate a criminal action afforded an offender under 21-556 is a right which he may or may not invoke. It is a privilege given by law to permit such an offender to correct an innocent mistake in issuing an insufficient fund check (State v. Morris, 190 Kan. 93, 372 P. 2d 282). If the right is invoked, the offender must bring himself clearly within the terms of the statute, that is, he must show to the satisfaction of the court or judge that he has complied with the three statutory requirements: first, that he had an account in the bank 30 days next prior to the giving of the check; second, that the check was given without intent to defraud the party receiving it, and third, if the court shall so find, ‘said action shall be abated and the defendant shall be discharged upon paying into Court the amount of such check and the costs in said case’ (G. S. 1949, 21-556; State v. Morris, 190 Kan. 93, 372 P. 2d 282).
. . The criminal prosecution is a matter in which the state alone is interested, and it is wholly unrelated to the proceedings in the bankruptcy court. It is elementary that there is a difference between a criminal action and a civil proceeding such as one in bankruptcy. Where the violation of a right admits of both a civil and criminal remedy, the right to prosecute the one is not merged in the other (G. S. 1949, 60-109). The state is not here seeking to enforce the Coop’s civil remedy. On the contrary, the defendant is seeking to abate the criminal action and obtain his discharge. That may be done only in the manner provided by the statute. While his discharge in bankruptcy is the equivalent of payment of his civil liabilities to his creditors, his payment of the check and costs to abate his criminal liability would not now constitute a preference of his creditors. Nor does the fact that the bankruptcy court made no determination that the debt represented by the check was not dischargeable under Sec. 17a (2) preclude the state from asserting that the defendant comply with the clear and unambiguous terms of the statute.” (pp. 193, 194.)
The defendant contends that payment of the check under section 21-556, since the payment is not in the form of a fine or penalty, is in fact the payment of a civil obligation, and therefore a discharge in bankruptcy should abate the action under the said statute. However, the contention is not sound. As stated in the Breitenbach case, while the debt on the check is a civil liability and could be satisfied by a discharge in bankruptcy, the act of writing a worthless check creates a criminal liability and is not discharged by a proceeding in bankruptcy. Section 21-556 is merely a permissive statute under the criminal code that provides the offender with a method of discharging his criminal liability without subjecting himself to prosecution. This is a privilege of which the defendant may or may not avail himself.
In the Breitenbach case we construed section 21-556 and held that a discharge in bankruptcy may not be pleaded by an offender under the “worthless check” statute (G. S. 1949, 21-554) as payment of the check in a proceeding to abate the criminal action and obtain his discharge.
In the recent analogous case of Kesler v. Dept. of Public Safety, 369 U. S. 153, 7 L. Ed. 2d 641, 82 S. Ct. 807, involving the Motor Vehicle Safety Responsibility Act, which essentially provided that to avoid suspension of a drivers license the operator must show proof of his ability to respond in damages in the future and must satisfy any judgment for any torts committed by him on the highway in the past, it was held that a discharge in bankruptcy relieves the bankrupt from legal liability to pay a debt that was provable, and is a valid defense in an action brought in the state court to recover the debt, but it does not free the bankrupt from all traces of the debt as though it had never been incurred. It was there stated that although states are not free to impose whatever sanctions they wish, other than an action of debt or assumpsit, to enforce collection of a discharged debt, the Bankruptcy Act does not forbid a state to attach any consequence whatsoever to a debt which has been discharged. The “worthless check” act leaves the bankrupt, to some extent, burdened by the discharged debt.
In State v. Avery, 111 Kan. 588, 207 Pac. 838, Justice Rousseau A. Burch, in speaking for this court, stated the purpose of the “worthless check” act was to discourage overdrafts and resulting bad banking, to stop the practice of “check kiting,” and generally to avert the mischief to trade, commerce and banking which the circulation of worthless checks inflicts, thus establishing the public policy of this state, which, when exerted for the protection of the people of the state, is as pervasive as any of the reserved powers of the state and should be respected unless there is a clear collision with the national law which has the right of way under the Supremacy Clause of the federal Constitution.
It seems apparent that the intent of the legislature in enacting section 21-556, providing for the abatement of the offense upon meeting the requirements set forth therein, should serve as a substantial deterrent to prevent the fraudulent making and uttering of such checks thereby stopping the practice of “check luting” and averting the mischief to trade, commerce and banking.
We are of the opinion the provisions of the mentioned “worthless check” act are not invalid under the Supremacy Clause of the federal Constitution as conflicting with the Bankruptcy Act, and what was said in State v. Breitenbach, supra, is controlling here and reaffirmed. It follows that the judgment of the trial court is affirmed.
It is so ordered.
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The opinion of the court was delivered by
Fatzeb, J.:
This action attacks the apportionment of the senate and house of representatives of the Kansas legislature. The appeal is from the order and judgment of the district court holding G. S. 1949, 4-102, relating to the seats in the senate, and G. S. 1961 Supp., 4-103, relating to the seats in multi-district counties of the house, to be unconstitutional and void; enjoining the secretary of state and various county election officials from performing any acts relating to the election of senators and representatives under those statutes, and ordering that the primary and general elections for seats in the senate be held on a state-wide basis and on a countywide basis for the seats in the house of representatives in all multidistrict counties.
When originally filed on November 1, 1961, the petition contained three causes of action. The first cause of action attacked the apportionment of senatorial districts. The second cause of action alleged that Article 2, Section 2, and Article 10, Section 1, apportioning the state into 105 representative districts on a geographical basis, that is, one to each county regardless of population, leaving only 20 seats to be apportioned on the basis of population, constituted a discriminatory apportionment of the house of representatives and denied the right of equal participation in the processes of state government and denied a vote and representation equal or substantially equal to that of citizens and qualified electors residing in counties and house districts with a disportionately smaller population and constituted an abridgement of the constitutional rights of plaintiffs and all other citizens and qualified electors similarly situated in violation of Sections 1 and 2 of the Bill of Rights of the Kansas Constitution, Article 4, Section 4 of the Constitution of the United States, and the Fourteenth Amendment thereto which prohibits a state from depriving any person of life, liberty or property without due process of law or denying to any person within its jurisdiction equal protection of the laws. The third cause of action, alternative if no relief be granted on the second cause of action, related to multi-district seats in the house of representatives from counties having more than one legislative district. Subsequently and before trial, plaintiffs dismissed their second cause of action and trial was had on the first and third causes of action only.
The allegations of the first and third causes of action were substantially similar except that the first cause alleged no apportionment of the senate had been made since 1947. Both causes of action alleged in substance that the apportionment statutes (G. S. 1949, 4-102, and G. S. 1961 Supp., 4-103) were unconstitutional and void in that they were not based upon the census of each preceding year and were not made in accordance with Article 10, Section 2 of the Constitution of Kansas; that they were grossly discriminatory against the right of equal representation of voters and taxpayers of the metropolitan or urban areas of the state thus arbitrarily depriving them of liberty and property without due process of law, and denying to them the equal protection of the laws, and their rights and privileges as citizens were thereby abridged in violation of the Fourteenth Amendment to the Constitution of the United States and of Article 2, Sections 2 and 29, of Article 4, Section 2, and Article 5, Section 1, of the Constitution of Kansas; and of the Civil Rights Act (28 U. S. C. §1343; 42 U. S. C. §§ 1983, 1988). Also, that plaintiffs were thereby deprived of a republican form of government as guaranteed by Article 4, Section 4, of the Constitution of the United States. The prayer was that the defendants be enjoined from performing any acts relating to election of senator and representatives under the statutes, and for an order requiring that the primary and general elections for seats in the senate be held on a state-wide basis and on a county-wide basis for the seats in the house of representatives in all multi-district counties.
Issues were joined by the defendants’ answer and plaintiffs’ reply and trial was by the court upon a stipulation of facts agreed to by the parties. The stipulation contained the population of the 40 senate districts for the years 1946 and 1961,- respectively; the population of the thirteen counties containing more than one representative district, and the population of the representative districts in those thirteen counties, based upon the official state census for the preceding years. The assertions and mathematical conclusions contained in plaintiffs’ petition concerning the disparity of vote and representation between the various senate districts and between representative districts located in multi-district counties also were stipulated as true. The plaintiffs offered the stipulation in evidence and rested, and the defendants offered no evidence. All matters contained in the stipulation were substantially found as facts by the court.
On July 26, 1962, the court rendered judgment in favor of the plaintiffs as heretofore related, and the defendants timely perfected this appeal. Upon the defendants’ application, this court entered its order on July 30,1962, staying the judgment during the pendency of the appeal.
The case was heard on its merits on January 21,1963. On January 31,1963, this court filed its per curiam opinion (Harris v. Shanahan, 191 Kan. 1, 378 P. 2d 157) and said:
“. . . we find that no declaration should now be made with respect to the invalidity of the existing apportionment statutes of the state Senate and to the seats in multi-district counties of the House of Representatives, and we withhold decision on the merits of all issues presented in order to afford the 1963 legislature full opportunity to heed the constitutional mandate to reapportion in accordance with Art. 10, §§ 1 and 2.
“If there is to be a judicial disruption of the present legislative apportionment or of the methods or machinery for electing members of the legislature it should not take place unless and until it can be shown that the 1963 legislature has failed to perform its constitutional duty to reapportion.
“Jurisdiction of this appeal is retained until further order of the court.” (1. c. 2.)
Both houses of the 1963 legislature introduced bills to apportion their respective legislative districts. House bill No. 1 was introduced in the house and Senate bill No. 440 was introduced in the senate. The house bill fixed the membership of that body at 105 members and repealed G. S. 1961 Supp., 4-103. The bill passed the house, was amended and passed by the senate, and failed to achieve a constitutional majority upon roll call in the house to concur in the senate amendment. (Senate and House Journals, 1963 [H. J. p. 455].) Senate bill 440 repealed the 1947 apportionment of the senate (G. S. 1949, 4-102) and reapportioned the 40 seats of that body. (Laws 1963, Ch. 13.) Based upon the 1962 census of state population of 2,165,009, an average-sized senatorial district should contain approximately 54,125 people. As introduced and passed by the legislature, senate bill 440 apportioned the state into 40 districts of approximately equal population, none of which varied more than approximately 10 percent from the average population figure of 54,125. The bill represented diligent and good-faith effort by the legislature to achieve the standard of equality of representation demanded by Article 10, Section 2, as hereafter noted, and we believe the minds of reasonable men could not doubt that a range of variance above and below the average district of not more than approximately 10 percent constituted as close an approximation to exactness as possible.
Subsequent to the adjournment of the 1963 legislature this court held hearings with respect to the validity of the 1961 apportionment of the multi-district seats in the house of representatives. (G. S. 1961 Supp., 4-103.) At the first hearing counsel for both parties orally stated that the 1963 apportionment of the senate met all the requirements of equal representation imposed by Article 10, Section 2, of the Kansas Constitution and that senate bill 440 should be judicially approved. Since that time, however, it has come to the court’s attention that all of the city of Leawood in Johnson County, consisting of approximately 8,800 people, was omitted from senatorial district No. 15 and was not included in any senatorial district. When counsel advocated judicial approval of the bill, the omission of the city of Leawood was then unknown to counsel, to the legislature, to the governor, and to this court. Shortly after the omission was discovered this court ordered counsel to file written briefs on the validity of senate bill 440 and to present oral argument.
The state’s supplemental brief suggests that the question of the validity of senate bill 440 may not now be inquired into since it was not one of the original issues of the case, but realizing the importance of the question, the gravity of the situation and the public welfare, it does not insist upon the point; rather, it states, “It is for the good judgment of this court to decide whether this new question shall be considered in this case.”
The first cause of action attacked the validity of the 1947 apportionment of the senate, which was the apportionment then in effect. Senate bill 440 was enacted after this court had taken note of the circumstances and had admonished the legislature then in session to do its duty in accordance with the constitutional mandate, and the court reserved its jurisdiction over questions raised by the suit.
It is the general rule that once a valid apportionment law is enacted no future act may be passed by the legislature until after the next regular apportionment period prescribed by the Constitution. (Jones v. Freeman, 193 Okl. 554, 146 P. 2d 564; Denney, Clerk, et al., v. The State, ex rel., Basler, 144 Ind. 503, 42 N. E. 929; The People v. Hutchinson, 172 Ill. 486, 50 N. E. 599; Parker, et al. v. The State, ex rel. Powell, 133 Ind. 178, 32 N. E. 836, 33 N. E. 119; People ex rel. Henderson v. Supervisors, 147 N. Y. 1, 41 N. E. 563; Harmison v. Ballot Com’rs 45 W. Va. 179, 31 S. E. 394; 18 Am. Jur., Elections, § 14, p. 190.) The apportionment period provided in the Constitution does not, of course, require that the act be passed at a regular session, but a special session may be called for that purpose. (The State ex rel. Attorney General vs. Cunningham, 81 Wis. 440, 51 N. W. 724; 18 Am. Jur., Elections, § 14, p. 190.)
The existing apportionment of the house of representatives was enacted in 1961 and that of the senate in 1963. Thus, both being current in terms of time within the meaning of Article 10, Section 2, those acts are not subject to change by the legislature until the next constitutional apportionment period unless held to be invalid. Since there is a presumption that laws passed by the legislature are valid and constitutional until judicially determined to be otherwise, the legislature will be powerless to lawfully reapportion until the next apportionment period, unless this court adjudges the present senate apportionment act to be invalid. Accordingly, the effect of the omission of the city of Leawood from any senatorial district must be carefully considered at this time and touched upon in the court’s opinion if opportunity for the correction of the senate apportionment is to be afforded prior to the primary and general elections in 1964.
The constitutionality of the 1963 act is clearly more critical now since the question whether it was duly and regularly enacted is sharply drawn into issue, and if decided in the negative, would leave the court necessarily deciding this case on the basis of the 1947 apportionment act (G. S. 1949, 4-102) originally attacked by plaintiffs’ petition if there be no subsequently valid act to replace it. Accordingly, we are of the opinion, under the issues presented and the legal question which has subsequently arisen concerning senate bill 440, that the validity of the 1963 senatorial apportionment is required to be determined along with the remaining issues of the constitutionality of the 1961 act apportioning the house of representatives.
Hence, we turn to the contention of the parties as to the validity of senate bill 440. In deciding the question it will be helpful to set out in chronological order the legislative history of the bill. On March 27, 1963, the Senate Committee on Legislative and Congressional Apportionment introduced the bill to apportion the state into 40 senatorial districts and to repeal G. S. 1949, 4-102. The bill was read the second time on March 28, and referred to the Committee of the Whole Senate. On March 29, the Committee of the Whole recommended that it be passed. On the same day and on an emergency motion, the bill was advanced to third reading and roll call and passed by a vote of 24 yeas and 6 nays. As introduced and passed by the senate, the designation of senatorial district No. 15 commenced on line 48 of the bill and ended on line 54. That part of the bill, including the line numbers, reads:
“48 15. All of Aubry and Oxford townships in Johnson county, “49 the city of Leawood in Johnson county, all of the territory in “50 precincts 3, 4, 5 and 6 of ward 2 and all of the territory in “51 wards 3, 4 and 5 of the city of Overland Park in Johnson county “52 and all of the territory in wards 4, 5 and 6 of the city of Prairie “53 Village in Johnson county shall constitute the fifteenth senatorial “54 district.” (Emphasis supplied.)
The bill was messaged to the house on April 1, 1963, and read the first time. The following day the bill was read the second time and referred to the House Committee on Legislative Apportionment. On April 10, and with respect to senatorial district No. 15, the House Committee recommended the bill be amended:
"... in line 48, by striking out all of the line after the word ‘of’; by striking out all of lines 50 to 54, inclusive, and inserting in lieu thereof the following: ‘all of precincts 4, 5 and 6 of ward 2 and precincts 3, 4, 5, 6 and 7 of ward 3, and all of wards 4 and 5 in the city of Overland Park in Johnson county and precinct 4 in ward 2 and all of wards 4, 5 and 6 in Prairie Village in Johnson county, shall constitute the fifteenth senatorial district.’ . . .” (Senate and House Journals, 1963, [H. J. p. 455].)
Thus, it is noted that after the house committee amendments, the only portion remaining in the bill establishing senatorial district 15 was the emphasized portion quoted above. When that language is added to the language inserted by the house committee amendments, senatorial district No. 15 was established to include the following:
“All of the city of Leawood in Johnson county, all of the territory in all of precincts 4, 5 and 6 of ward 2 and precincts 3, 4, 5, 6 and 7 of ward 3, and all of wards 4 and 5 in the city of Overland Park in Johnson county and precinct 4 in ward 2 and all of wards 4, 5 and 6 in Prairie Village in Johnson county, shall constitute the fifteenth senatorial district.”
On the same day, April 10, the committee recommended that the bill be passed as amended and the committee report was adopted by the house. On the same day, and on an emergency motion, the bill was advanced to third reading subject to amendment and debate. Thereupon the bill passed the house upon roll call by a vote of 90 yeas and 11 nays. On that same day, April 10, the senate received the bill from the house as amended, and concurred in the house amendments by a vote of 28 yeas and 8 nays. On April 13, under the heading of “Report on Engrossed Bills,” senate bill 440 was reported as correctly engrossed. On April 16, under the heading of “Report on Enrolled Bills,” the journal of the senate shows that senate bill 440 was correctly enrolled, properly signed, and presented to the governor on that date for his signature. On April 16, under the heading of “Messages from the Governor” the journal of the senate shows that the bill was signed by the governor on April 17, 1963.
Enrolled senate bill 440 appears in the 1963 Session Laws as Chapter 13, pages 29 through 37. Beginning on page 30 of the fourth line from the top, the paragraph pertaining to senatorial district No. 15 reads as follows:
“15. All of precincts 4, 5 and 6 of ward 2 and precincts 3, 4, 5, 6 and 7 of ward 3, and all of wards 4 and 5 in the city of Overland Park in Johnson county and precinct 4 in ward 2 and all of wards 4, 5 and 6 in Prairie Village in Johnson county, shall constitute the fifteenth senatorial district.”
From the foregoing it is obvious that the minds of the house and senate met in common agreement that senate bill 440, as amended by the house, be passed. At some later time, after passage of the bill by both houses, a variation appeared in the language establishing senatorial district No. 15, notwithstanding the senate committee’s report that the bill was correctly engrossed and enrolled. Unfortunately, in the engrossing of the bill the language relating to the city of Leawood was omitted, and the remaining language of the house amendment was such as to give no warning of the omission. The enrolled bill blindly followed the language of the engrossed bill, which was approved and signed by the governor on April 17, 1963.
With the undisputed legislative record in mind, let us examine the specific question before us. Is the statute (Laws 1963, Ch. 13) void for the reason that the governor did not sign the bill passed by the legislature? The question requires an examination of our Constitution and previous decisions of this court as to its validity. The pertinent part of Article 2, Section 14, reads:
“Every bill and joint resolution passed by the house of representatives and senate shall, within two days thereafter, be signed by the presiding officers, and presented to the governor; if he approve, he shall sign it; but if not, he shall return it to the house of representatives, which shall enter the objections at large upon its journal and proceed to reconsider the same. . . .”
It is important here to state pertinent rules applicable to this constitutional provision which are essential to transferring a bill introduced in the legislature into a law. It has been held that the legislature and the governor exercise co-ordinate functions in enacting laws, and the governor is an essential part of the legislation. (State, ex rel., v. Ryan, 123 Kan. 767, 771, 256 Pac. 811; State, ex rel., v. Robb, 163 Kan. 502, 183 P. 2d 223.) Under this provision, until a bill has the final consideration of the three law-making powers, that is, the house, the senate, and the governor, it is not a law. (State v. Sessions, 84 Kan. 856, 868, 115 Pac. 641; State, ex rel., v. City of Salina, 108 Kan. 271, 194 Pac. 931; State, ex rel., v. Ryan, supra.) Hence, it is important that we keep in mind the distinction between a bill and a law. A bill never becomes a law until the constitutional prerequisites respecting the manner of enactment have been fully complied with. (50 Am. Jur., Statutes, § 97, p. 103; 82 C. J. S., Statutes, § 60b, p. 94.)
Another rule of long standing in this jurisdiction is that before an enrolled bill can be impeached successfully by the journals of the legislature, the latter must show affirmatively, clearly, conclusively and beyond all doubt that the bill as enrolled was not the bill passed. Also, that the records of the legislative journals import absolute verity and are conclusive as to the facts therein affirmatively shown. (In re Taylor, 60 Kan. 87, 55 Pac. 340; Belleville v. Wells, 74 Kan. 823, 824, 88 Pac. 47; Smith v. Robertson, 155 Kan. 706, 709, 128 P. 2d 260, and cases cited.)
Another rule requiring consideration is that it is the policy of the courts to uphold legislative intent rather than to defeat it, and if there is any reasonable way to construe legislation as constitutionally valid it will be so construed. Further, that doubts as to constitutionality always are resolved in favor of validity and statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt. (Hunt v. Eddy, 150 Kan. 1, 90 P. 2d 747, and cases cited; State, ex rel., v. Fadely, 180 Kan. 652, 308 P. 2d 537.)
Counsel for both parties assert that this court has not only the power but also the duty to sustain the constitutionality of the act by supplying the words “the city of Leawood in Johnson county, all of the territory in” as the same appears in line 49 of senate bill 440 and as passed by both houses but omitted therefrom when the bill was engrossed and enrolled. It is argued that in many cases of statutory construction the legislative intent can be derived only by inference or implication; that the present case is distinctly different in that specualtion or reasoning as to the legislative intent need not and cannot be resorted to; that the record plainly shows the legislative intent and the action it took was to include Leawood in the 15th senatorial district and there is no room whatever for dispute of that fact. They further argue that while the general rule as to ambiguity applies in many cases, it is not always applicable, and that words may be inserted in or added to a statute in order to effectuate the legislative intent; that it is within the power of a court whenever necessary to effectuate legislative intent to supply language in construing an act, inserting such words and clauses as may reasonably appear to be called for; that words may be supplied in a statute in order to give it effect, or to avoid repugnancy or inconsistency with the legislative intent, or where omission is due to inadvertence, mistake, accident or clerical error, or where omission makes the statute absurd and that omissions may be supplied to prevent unconstitutionality. A few of the authorities cited and relied upon are: II Sutherland, “Statutory Construction,” 3d Ed. § 4924, pp. 453, 458; Endlich, “Commentaries on the Interpretation of Statutes,” p. 399; Commonwealth v. Barney, 115 Ky. 475, 74 S. W. 181, 184; State ex rel. McGrael v. Phelps, 144 Wis. 1, 128 N. W. 1041; Landrum v. Flannigan, 60 Kan. 436, 56 Pac. 753; State v. Brodigan, 37 Nev. 245, 141 Pac. 988; State v. Crockett, 137 Tenn. 679, 195 S. W. 583; Keenan v. Price, 68 Idaho 423, 195 P. 2d 662.
We have no quarrel with the authorities cited, but they are not authority for the proposition which is sought to be drawn from them, that is, where the legislature passes one bill and another bill is presented to and signed by the governor, the court may reach out and draw from the legislative records the omitted portion of a bill and insert by judicial construction the omitted portion into law. The parties candidly concede there is no ambiguity in that part of the bill which established senatorial district 15. What they ask this court to do is not to construe the statute, but in effect, enlarge it so that what was omitted by inadvertence or error, may be included within its scope. To supply the omissions under these circumstances would transcend the judicial function. (Iselin v. United States, 270 U. S. 245, 70 L. Ed. 566, 46 S. Ct. 248; Ayers v. Comm'rs of Trego Co., 37 Kan. 240, 242, 15 Pac. 229.) This court has the power to declare a legislative act invalid when it infringes the superior law, but it has no power to correct or amend an act, or even construe it when expressed in plain and unambiguous language. The general rule is that where the statute is plain and unambiguous, there is no room left for judicial construction so as to change the language employed therein. (Fitzpatrick v. Gebhart, 7 Kan. 35.) In Russell v. Cogswell, 151 Kan. 793, 101 P. 2d 361, it was said:
“. . . Errors plainly clerical in character, mere inadvertences of terminology, and other similar inaccuracies or deficiencies will be disregarded or corrected where the intention of the legislature is plain and unmistakable. But the court cannot delete vital provisions or supply vital omissions in a statute. No matter what the legislature may have really intended to do, if it did not in fact do it, under any reasonable interpretation of the language used, the defect is one which the legislature alone can correct.” (l. c. 795.)
In Ayers v. Comm’rs of Trego Co., supra, it was said:
“Regarding the contention that ‘31/ in § 7, chapter 70, Laws of 1883, should read ‘9/ we need only reply, that we have not the right to change the statute where it is clear and free from ambiguity, by any judicial interpretation. We have no authority to interpolate ‘9’ in tire statute in the place of ‘31’ when ‘9’ does not appear therein. As the statute is plain and unambiguous, there is no room left for construction. (In re Hinkle, 31 Kas. 712.) . . .” (l. c. 242.)
The rule is somewhat more limited than asserted by counsel. Generally speaking, courts have no right to correct errors made in an enrolled bill and they will ordinarily take the latter as they find it, and if not constitutionally enacted, will declare it void. (50 Am. Jur., Statutes, §§ 97, 232, 234, pp. 103, 219, 221; 82 C. J. S., Statutes, § 60b, p. 94.) Nearly all the cases holding that errors and mistakes may be corrected deal with errors and mistakes apparent on the face of the legislative enactment, either standing by itself or in connection with other well-known facts. Very few of such cases deal with the question whether the procedural steps in enacting the law have been followed; that is, whether the act signed by the governor was the act passed by the legislature. In other words, such cases deal in the main with the construction of the legislative enactment rather than the validity of the procedure or steps of its enactment. (State v. Wright, 62 Wyo. 112, 163 P. 2d 190.) In State v. Hill, 189 Kan. 403, 369 P. 2d 365, 91 A. L. R. 2d 750, it was held that the construction of a statute, the function of a court to ascertain its scope and meaning, is not to be confused with the duty of determining its validity when measured by constitutional guaranties.
We think that what was said and held in State, ex rel., v. Robb, 163 Kan. 502, 183 P. 2d 223, is decisive of the question. That was a mandamus action to compel the registration of county hospital bonds which the state auditor had refused to register because the amount of the bonds was more than the county was authorized to issue under G. S. 1935, 10-301, the general bond limitation statute. During the regular 1947 session a senate bill was introduced to amend 10-301 so that the limitation provided therein did not apply to county hospital bonds. At the same time house bill 131 was introduced to amend 10-301 in certain particulars, and passed the house. In the senate it was amended to exempt county hospital bonds from the general bond limitation statute. The bill passed the senate, as amended, and was messaged to the house which concurred in the amendment. When the bill went to the state printer to be enrolled, the senate amendment did not come to the attention of the employees and on return of the enrolled bill to the house and senate the omission of the amendment was unnoticed. In that form it was signed by the officers of the legislature and presented to the governor for his signature. As signed by officers of both houses and duly signed by the governor, the bill did not contain the amendment exempting county hospital bonds from the general bond debt limitation prescribed by 10-301.
There, as here, it was argued that where the legislative records clearly show the legislative intent and affirmatively show the action taken was to include the amendment — in the instant case to include that part of the original bill pertaining to the city of Leawood— the enrolled bill can be impeached successfully to show that it was the intention of both houses and the governor that the bill as passed by the legislature should be construed to be the effective bill, otherwise a clerical employee or printer can effectively thwart the purpose of the legislature and the governor and give to such errant and unknown clerk or printer the power to veto legislation.
The contention overlooks the fact that in the Robb case as well as in the instant case, a duly constituted committee of the legislature reported the bill, in the former case, to be correctly enrolled, and in the instant case, to be correctly engrossed and enrolled, when in truth and in fact they were not. Despite the fact that the mechanical work of engrossing bills is performed by clerical employees, the duly constituted committees of each body of the legislature cannot escape the responsibility of carefully examining all engrossed and enrolled bills. Had the committees done so in the Robb case and in the instant case, the omissions would have been discovered and timely corrected. In the Robb case it was said:
“Plaintiffs argue this court should take judicial notice of what the enrolled bill contained and what the legislative journal contained, and of every step that might affect the validity or meaning of this statute. They argue that enrolled bills may be impeached by an examination of the legislative records of the house and senate, and that when that is done, it becomes clear that it was the intention of the house and senate and governor, that the bill as passed by both houses with the amendment added in the senate should be construed to be the effective bill. They point out that to hold otherwise would permit the enrolling clerk to impair or invalidate or change an act by dropping out a provision by inadvertence, carelessness or fraud, and that this would be obviously against public policy.
“To sustain this position plaintiffs cite and rely on the following Kansas authorities: Comm’rs of Leavenworth Co. v. Higginbotham, 17 Kan. 62; Division of Howard Co., 15 Kan. 194; Prohibitory-Amendment Cases, 24 Kan. 700; and Weyand v. Stover, Treas., 35 Kan. 545, 11 Pac. 355.
“Those cases are authority for a holding that this court will look behind the language of the enrolled bill to the legislative journals and other records when the constitutionality or meaning of a bill is being considered. They are not authority for the conclusion which plaintiffs seek to draw therefrom, that is, that where the house and senate pass one bill and the governor signs another, we should hold the bill passed by the house and senate to be the law. . . .” (l. c. 508, 509.)
Decisions from other jurisdictions were then reviewed and discussed at length, and it was said:
“The foregoing are the authorities upon which plaintiffs rely. . . . They seem to fall into two classifications, one where a typographical or clerical error was corrected — the other where by signing a bill with a large figure in it the governor was held to have in effect approved a bill with a smaller figure. The fact is, these opinions, most of them seem to have been based on reasons of expediency rather than any well-reasoned philosophy of constitutional law.
“In the making of laws under our constitution the governor and the legislature are co-ordinate branches. That is the way the writers of the constitution intended it should be. The one is about as important as the other. The court will not for reasons of expediency reach a conclusion that will enable either one to bypass the other.” (l. c. 515, 516.)
The court then quoted Article 2, Section 14 in full, heretofore quoted in part. Referring to this provision, the court said:
“This section is clear. There can be no doubt but that each bill passed must be presented to the governor, and if he approves it he shall sign it, and if not he shall return it with his reasons. The rest of the section deals with the power of the legislature to override a veto by a vote of two-thirds.
“The judiciary is merely one of the three branches of the state government. It should be slow to approve any action which even has the semblance of permitting one branch to act toward another in a manner contrary to the terms and provisions of the constitution.
“In Vaughn & Ragsdale Co. v. State Board, etc., 109 Mont. 52, 96 P. 2d 420, the subject received careful consideration. The court held:
“ ‘The legislature alone cannot enact a law; it has the power to pass bills which may become laws when signed by the presiding officers of both houses and when approved and signed by the governor, these officers being an indispensable part of the machinery set up by the Constitution to make laws.’ (p. 52.)” (l. c. 517.)
In denying registration of the bonds it was only necessary for the court to consider the validity of the omitted amendment and whether it became law; the court was not required to further consider the validity of house bill 131 itself. On that point a concluding sentence of the opinion is noteworthy, “The fact remains, however, that the bill that passed the legislature never was submitted to the governor.” It was held that Article 2, Section 14 requires that bills passed by the legislature be submitted to the governor for his signature and where a bill was submitted to the governor without an amendment which had been adopted by both houses, the amendment did not become law. See, also, Vaughn & Ragsdale Co. v. State Board, etc., supra; Katerndahl v. Daugherty, 30 Idaho 356, 164 Pac. 1017; State v. Wright, supra; State ex rel. Foster v. Naftalin, 246 Minn. 181, 74 N. W. 2d 249; Slauson et al. v. The City of Racine, 13 Wis. 398, and Denney, Clerk, et al. v. The State, ex rel., Basler supra.
We assume that the intention of both houses of the legislature and of the governor was to enact a law which gave adequate senatorial representation to every citizen of Kansas, including the residents of the city of Leawood. No one questions that fact. But we are confronted with what was done, not what the legislature may have really intended to do. Hence, what was said and held in the Robb case is equally applicable in the instant case. The difference is slight. There we were concerned with an amendment to a bill passed by both houses of the legislature, which was omitted when the bill was enrolled and when signed by the governor, and here with a bill which was amended and passed by both houses, but when engrossed and enrolled and signed by the governor, a portion of the original bill was omitted. In the Robb case, the amendment was as much a part of the bill when it passed both houses of the legislature as was that part of line 48 and all of line 49 of senate bill 440 when it passed both houses of the legislature following the house amendment. However, the omitted language in both was not in the enrolled bills when presented to and signed by the governor. Efforts to distinguish the Robb case from the instant case because there the omission “was an amendment,” because it “dealt with an enactment — which would amend the general bonded debt limitation law” and “was purely within the discretion of the legislature,” whereas in the instant case, “the legislature was under a constitutional mandate to reapportion the senate,” or, because the omission left the original bill in the instant case less clear and effective “for the purpose for which it was introduced,” are not well taken. Both cases deal with acts of the legislature which are subject to the requirements of the Constitution. The long and short of this case is that the bill passed by both houses of the legislature was not the bill approved and signed by the governor and this court has no authority to insert what was omitted. The requirements of Article 2, Section 14, are mandatory that the governor sign the same bill which passed the legislature. It follows that the enrolled bill the governor signed (Laws 1963, Ch. 13) was not made into law in the form and manner prescribed, and is a void enactment.
Due to the nature of senate bill 440 and its importance to the people of the state, we have examined the question somewhat at length. It is to be deeply regretted that as important a law as this, covering a subject of great public interest, should, because of gross carelessness of someone, be wiped bodily from the statute book. But the court is not responsible for this; nor can it usurp the functions of the legislature or the governor, and, by shutting its eyes to the undisputed legislative record, declare a bill as passed by both houses of the legislature, which was never presented to the governor nor approved by him, to be a valid law. It is lamentable that error on the part of engrossing clerks and legislative committees should defeat the action of the legislature. But the strict rule calling for full compliance with constitutional requirements is, in the long run, a good one. In some cases it may work a hardship, but, by and large, it is beneficial to our republican form of government. (State ex rel. Foster v. Naftalin, supra.)
The parties have raised other questions but in view of the conclusion just announced, it is unnecessary to consider them. For reasons hereafter stated, we do not consider whether G. S. 1949, 4-102, the 1947 Apportionment Act, is unconsitutional for the reasons alleged in the first cause of action.
As preliminary to discussing remaining questions we note briefly the state’s constitutional history as pertains to the legislative department. When our Constitution was adopted in 1859, original Article 2, Section 2, provided that the first house of representatives would consist of 75 members chosen for one year and the first senate would consist of 25 members chosen for two years, and after the first election the number of senators and members of the house of representatives was to be regulated by law, but never to exceed 100 representatives and 33 senators.
In 1873 a major constitutional change affecting apportionment was made by the legislature. At that regular annual session it submitted Article 2, Section 2, hereafter quoted, enlarging both houses of the legislature, which was adopted by the people at the general election held November 4, 1873. While 100 members were admitted and sworn as representatives at the 1873 Session (Prouty v. Stover, Lieut. Governor, 11 Kan. 235), no one could foresee how many new counties would be organized in a growing state, nor how many counties Kansas would ultimately have when all its territory was placed in organized counties. With the formation of five western counties in 1887, the last of the present 105 counties were organized. (Laws 1887, Chs. 2 and 81.) However, from 1888 to 1893 Kansas had 106 counties, the extra county being Garfield which was organized in 1887 by taking territory from Finney and Hodgeman counties. (Laws 1887, Ch. 81.) In 1893 this court declared Garfield County to be illegally organized. (State, ex rel., v. Comm'rs of Garfield Co., 54 Kan. 372, 38 Pac. 559.)
The plaintiffs allege federal constitutional violations, the most material of which are denial of equal protection of the law and due process of law in violation of the Fourteenth Amendment. With the dismissal of the second cause of action it becomes unnecessary for this court to determine whether an apportionment of the state into 105 representative districts on a geographical basis pursuant to Article 2, Section 2, and Article 10, Section 1, offends concepts inherent in the American system of republican government which were approved by Congress when Kansas was admitted to the Union on January 29, 1861 (12 Stat. 126), and whether the legislature, in voting for ratification of the Fourteenth Amendment in 1867 (Laws 1867, Ch. 3), rendered our Constitution under which it was then assembled, to be unconstitutional and in violation of the amendment ratified. Hence, in view of conclusions hereafter announced, any possible federal question is removed from the case, and our consideration of remaining questions is limited solely to whether the 1961 Apportionment Act discriminates in the apportionment of the 20 “extra” seats in the house of representatives, and violates Article 10, Section 2 of the Constitution of Kansas, as alleged in the third cause of action.
This brings us to a consideration of pertinent provisions of the Kansas Constitution, which read:
“The legislative power of this state shall be vested in a house of representatives and senate.” (Art. 2, Sec. 1.)
“The number of representatives and senators shall be regulated by law, but shall never exceed one hundred and twenty-five representatives and forty senators. From and after the adoption of the amendment the house of representatives shall admit one member from each 'county in which at least two hundred and fifty legal votes were cast at the next preceding general election; and each organized county in which less than two hundred legal votes were cast at the next preceding general election shall be attached to and constitute a part of the representative district of the county lying next adjacent to it on the east.” (Art. 2, Sec. 2.)
“At the general election held in eighteen hundred and seventy-six, and thereafter, members of the house of representatives shall be elected for two years, and members of the senate shall be elected for four years.” (Art. 2, Sec. 29.)
“In the future apportionment of the state, each organized county shall have at least one representative; and each county shall be divided into as many districts as it has representatives.” (Art. 10, Sec. 1.)
“It shall be the duty of the first legislature to make an apportionment, based upon the census ordered by the last legislative assembly of the territory; and a new apportionment shall be made in the year 1866, and every five years thereafter, based upon the census of the preceding year.” (Art. 10, Sec. 2.)
The purport of Article 2, Section 2, and Article 10, Section 1, simply means that the number of representatives constituting the house of representatives, and the number of senators constituting the senate, shall be regulated by law; that the number of representatives and senators as regulated by law shall never exceed 40 senators and 125 representatives, but the number of representatives shall be not less than the number of organized counties which cast at least 250 legal votes at the last preceding general election. (State, ex rel., v. Francis, Treas’r., 26 Kan. 724.) The qualification that a county must cast 250 votes in order to have separate representation is virtually meaningless today since the 1909 Reapportionment Act (Laws 1909, Ch. 196) gave all 105 counties at least one representative, and there has.been no change since that time in the number of counties entitled to representation in the house of representatives. (Reapportionment of the Kansas Representatives, Research De partment, Legislative Council, Bulletin 181, December 1952.) In conformity with Article 2, Section 2, the legislature has provided that the senate shall consist of 40 members and the house of representatives shall consist of 125 members. (G. S. 1949, 4-101.)
As noted, Article 10, Sections 1, 2 and 3, deals with the apportionment of the legislature and has not been changed since adopted in 1859. While the Constitution of the state of Ohio was a model for the Constitution of Kansas (Proceedings and Debates, Wyandotte Constitutional Convention, 1859, pp. 39, 40; Markham v. Cornell, 136 Kan. 884, 18 P. 2d 158; State, ex rel., v. Fadely, supra), Mr. Graham, of Atchison County, a member of the apportionment committee, in the debate upon those sections said that the precedent followed was the Pennsylvania Constitution of 1838. The first part of Section 1, “each organized county shall have at least one representative” was a part of Article 1, Section 4, of the Pennsylvania Constitution. The remainder of the section differs in words, but carries out the purpose of the Pennsylvania provision. Section 2, providing for apportionment according to census, though following in part Article 1, Sections 4 and 7 of the Pennsylvania Constitution, was for several reasons almost entirely original. First, the territorial legislature had ordered a census to be taken, so the first apportionment was to be based upon that report; second, the population was growing so rapidly that the committee thought best to apportion the state every five years instead of waiting ten years as is. provided in other state Constitutions. By fixing the first apportionment in 1866 it could be based upon the census provided for by the 1865 legislature. Section 3 merely made temporary apportionment for both senators and representatives as was done in the Constitution of other states and as was done by the Topeka Constitution. From the nature of the subject matter the wording of Article 10 is very near original, though the precedents of Pennsylvania, New York, Wisconsin and Illinois were followed in theory. (Perdue: Sources of Constitution, Proceedings and Debates, Wyandotte Constitutional Convention, 1859, pp. 689, 690.)
When the founding fathers wrote the Constitution of the United States they enthusiastically established a republican form of government which became the cornerstone of American written constitutions. (James Madison’s report of the “Debates in the Federal Convention of 1787” [House Document No. 398, 69th Congress, first session, entitled “Documents Illustrative of the Formation of the Union of the United States of America.”].) So. there could be no mistake about its object and purpose, the American Republic officially and with the first breath of its new life declared, “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” (The Declaration of Independence.) This is the American proclamation of freedom and equality, and the individual worth of a single human being. Within its designated sphere of constitutionally allocated powers, and subject always to its guiding purpose as stated in the Declaration of Independence, the American system of Government was designed to function through representatives chosen by the people and responsible to them on regularly recurring election days. Article 4, Section 4, of the Constitution of the United States guarantees to every state in the Union a republican form of government and every sentence and provision of the Kansas Constitution evidences principle of that form of government declaring and guaranteeing the liberties of the people. A distinguishing feature of this form of government is that the people are capable of self-government and have the right to choose their own officials for governmental affairs and enact their own laws pursuant to the legislative power reposed in representative bodies. This representative system is the essence of the republican form of government and is premised upon the fact that the people cannot speak in mass, and the right to choose a representative is every citizen’s portion of sovereign power.
Within the express and implied provisions of the Constitution of Kansas every qualified elector of the several counties is given the right to vote for officers that are elected by the people, and he is possessed of equal power and influence in the making of laws which govern him. (Rill of Rights, Kansas Constitution, Sections 1, 2.) Insofar as he is accorded less representation than is his due under the Constitution, to that extent the governmental processes fail to record the full weight of his judgment and the force of his will. The apportionment provisions were designed to guard that equality of representation so necessary to protect our citizens against the usurpation of governing power and resulting taxation without representation, and the intent and purpose of Article 10, Sections 1 and 2 may be simply stated: The legislature is directed to appor tion the state eveiy fifth year after the year of 1866 into substantially equal legislative districts based upon the states population for the preceding year, except that each organized county shall have at least one representative, and each county shall be divided into as many districts equal in population as it has representatives. The census used for this purpose is the official state census which is made on an annual basis. (G. S. 1949, 11-101, et seq., as amended; Turner v. Comm’rs of Neosho Co., 27 Kan. 639, 641; State, ex rel., v. Montgomery County Comm’rs, 125 Kan. 379, 381, 264 Pac. 84.)
The provisions requiring the legislature to provide a new apportionment every five years are mandatory and not subject to legislative discretion. This requirement is a mandate from the people and the legislature cannot, either by positive action or by inaction, alter our Constitution under which it has its own existence. The exercise of discretion and good faith by the legislature in enacting an apportionment law must be limited to the standards provided in our Constitution and not to some other which the Constitution has not fixed. This is not to say, however, that there is not an element of discretion involved in the enactment of any legislative apportionment. Subject to the requirement of equal population provided by Article 10, Section 2, the location of boundaries, the shape, area, and other relevant factors are proper considerations for the legislature in the enactment of such a statute. Indeed, geographical considerations are necessarily attendant in the accomplishment of this purpose for the resulting districts should, where possible, be compact and contain a population and area as similar as may be in its economical, political and cultural interests, all as determined by the legislature in its discretion, not acting arbitrarily or capriciously.
Subject, then, to geographical limitations of the house of representatives, Article 10, Sections 1 and 2, contemplates equal representation and such requirement will not be satisfied with less than such equality as common justice and ordinary knowledge of our territory and population would suggest. Perfect exactness in the apportionment of the legislature in accordance with the census of the proceeding year is neither required nor possible, but there should be as close an approximation to exactness as possible and this is the utmost limit for the exercise of legislative discretion. (Prouty v. Stover, Lieut. Governor, supra.) In Ragland v. Anderson, &c., 125 Ky. 141, 100 S. W. 865, the Supreme Court of Kentucky considered this question, and said:
. . We have not been referred to a more accurate or better description of the equality required by the Constitution that that contained in the report of Daniel Webster, as chairman of a senatorial committee engaged in a duty similar to that involved in the act under discussion: ‘The Constitution, therefore, must be understood not as enjoining an absolute relative equality, because that would be demanding an impossibility, but as requiring Congress to make an apportionment of representatives among the several states, according to their respective numbers, as nearly as may be. That which cannot be done perfectly must be done in a manner as near perfection as can be. If exactness cannot, from the nature of things, be attained, then the nearest practicable approach to exactness ought to be made. Congress is not absolved from all rule, merely because the rule of perfect justice cannot be applied. In such a case approximation becomes a rule. It takes the place of the other rule, which would be preferable, but which is found inapplicable, and becomes itself an obligation of binding force. The nearest approximation to exact truth or exact right, when that exact truth or exact right cannot be reached, prevails in other cases, not as a matter of discretion, but as an intelligible and definite rule, dictated by justice, and conforming to the common sense of mankind — a rule of no less binding force in cases to which it is applicable, and no more to be departed from than any other rule.’” (l. c. 158, 159.)
The definition of equality of representation above set forth, and the principle that an apportionment statute which violates its requirements is void, is adopted by this court as the proper standard to be used by the legislature in apportioning the state in legislative districts in accordance with Article 10, Sections 1 and 2.
There should be no misunderstanding as to the function of this court in the case at bar. It is sometimes said that courts assume a power to overrule or control the action of the people’s elected representative in the legislature. That is a misconception. First, the duty of reapportionment is legislative in nature and is committed by the Constitution to the legislature, and courts cannot make a reapportionment themselves. Second, conforming to concepts inherent in American republican form of government, the Constitution of Kansas distributes the powers of government to three distinct and separate departments, i. e., the Executive, Legislature, and Judicial. The judiciary interprets, explains and applies the law to controversies concerning rights, wrongs, duties and obligations arising under the law and has imposed upon it the obligation of interpreting the Constitution and of safeguarding the basic rights reserved thereby to the people. In this sphere of responsibility courts have no power to overturn a law enacted by the legislature within constitutional limitations, even though the law may be unwise, impolitic or unjust. The remedy in such a case lies with the people. But when legislative action exceeds the boundaries of authority limited by our Constitution, and transgresses a sacred right guaranteed or reserved to a citizen, final decision as to invalidity of such action must rest exclusively with the courts. In the final analysis, this court is the sole arbiter of the question whether an act of the legislature is invalid under the Constitution of Kansas. (Quality Oil Co. v. du Pont & Co., 182 Kan. 488, 493, 322 P. 2d 731.) However delicate that duty may be, we are not at liberty to surrender, or to ignore, or to waive it. Every citizen and qualified elector in Kansas has an undoubted right to have the districts for representatives and senators created in accordance with the Kansas Constitution, and has a further right to invoke the power of the courts to protect such constitutional right. It is axiomatic that an apportionment act, as any other act of the legislature, is subject to the limitations contained in the Constitution, and where such act exceeds the bounds of authority vested in the legislature and violates the limitations of the Constitution, it is null and void and it is the duty of courts to so declare. It is not enough that one legislative district is of the proper size theoretically so long as other districts are given greater or less representation than is warranted by the Constitution and their population. The provisions of an act apportioning the state into legislative districts are so largely dependent on each other that if some of the districts are unconstitutionally apportioned, the entire apportionment is void.
The population statistics and related mathematical conclusions presented by plaintiffs were admitted by the defendants, and in passing upon the legal question presented in addition to the stipulation of the facts of the parties, this court takes judicial notice of any and all official publications of the Kansas State Department of Agriculture, the Secretary of State of Kansas, and any other public official or bureaus of the state which pertain to the official state census, the population of the state of Kansas, or of any of the counties, townships or cities located therein or which relate to the population of any of the districts in the house of representatives.
The admitted and stipulated facts of this case show on their face that the same commendable results achieved for the senate when the legislature passed senate bill 440 has not, unhappily, been reached with respect to the distribution of the 20 “extra” seats in the house of representatives and the apportionment of districts within multi-district counties. Subject to the geographical apportionment, the same requirement of equality of representation applicable to the senate is also applicable to the house of representatives, and as noted from the population statistics set forth in Appendix A and B to this opinion, there has been no compliance with that requirement. The stipulated facts show that the official 1960 population of Kansas was 2,130,579, and this was the census for the year preceding the 1961 apportionment of the house of representatives. (G. S. 1961 Supp., 4-103.) Examining the act in the light of that census, Barton County, with a population of 34,147, was given two representatives with an average district population of 17,073. By contrast, the act gave Sedgwick County, with a population of 325,399, five representatives with an average district population of 65,079. This disparity of equality of representation is approximately 282 percent, and other multi-district counties show a similar disparity of average representation. In addition, the stipulation reflects a grossly unequal population basis as between districts within the same county. The act assigned Leavenworth County two representative districts, one having a population of 23,707 and the other with a population of 14,214. Johnson County was assigned three representative districts, one having a population of 66,420 and another having a population of 29,500. Reno County was assigned two grossly disapportioned districts, one having a population of 50,451 and the other having a population of 9,518 reflecting an apportionment based on unequal population of a ratio of better than 5 to 1. On its face the act offends fundamental concepts inherent in our republican form of government and makes out a prima facie case of unequal representation so great that it repels any presumption there exists a fair approximation of what is required by Article 10, Section 2, and compels the conclusion that the challenged act is void and ineffective.
When our Constitution was adopted there were 40 organized counties, and after the first election the membership of the house of representatives was to be regulated by law but never to exceed 100 representatives. When Article 2, Section 2 was amended in 1873 there were 68 organized counties and the membership was enlarged not to exceed 125. Thus, there always were “extra” seats to be apportioned on the basis of population. It was recognized by those who framed the Constitution that a mathematical exact division of those seats would be impossible because there were no fractional representative districts — Article 10, Section 1 provides that “each county be divided into as many districts as it has representatives." The task would be simple if, in regulating by law the number of representatives, the legislature would reduce the number to 105, or, if not reduced, if the population of the state were divided by 125 and the quotient could be divided evenly into the population of each county. Unfortunately, under the latter, such a perfect result is unlikely, so the legislature is faced with the problem of apportioning whole seats to the extent indicated by population subject to the constitutional requirement that each county have at least one representative, and then opportion the remaining or “extra" seats in accordance with some formula which treats of the remaining fractions so as to produce “as close an approximation to exactness as possible” in conformity with the apportionment mandate.
The problem is not unsurmountable and has been the subject of much scientific thought and research, and legislative and judicial approval. Congress has been confronted with the problem after every decennial census for over a hundred years. The Federal Constitution provides that one representative shall be assigned to each state and no problem would be presented if the house of representatives consisted of 50 members. However, Congress has fixed the membership of that body at 435 ( 2 U. S. C. A. § 2), leaving 385 seats to be assigned to the several states on the basis of population. The only difference between the congressional problem and that of the Kansas legislature is that Congress has a greater number of seats to “play with” than the 20 “extra” seats in the Kansas house of representatives. The state of Arkansas has been confronted with a similar problem. The Constitution of that state (Constitution of Arkansas, Art. 8, §§ 1 through 6), fixes the membership of its house of representatives at 100 and provides that each of its 75 counties shall be entitled to at least one representative. Likewise, the state of New Jersey has experienced the same difficulty. Article 4, Section 3 of the Constitution of New Jersey, 1947, provides that the members of the General Assembly (the equivalent of our house of representatives) shall never exceed 60 and that its members shall be apportioned among the several counties as nearly as may be according to the number of their inhabitants but each of the 21 counties shall at all times be entitled to one member.
According to an eminent mathematician, a study of the problem was made in 1921 showing there were five methods which are work able and which avoid what the author referred to as the “paradoxes.” (Edward V. Huntington, Department of Mathematics, Harvard University: “A Survey of Methods of Apportionment in Congress,” 76th Congress, 3rd Session, Senate Document No. 304, p. 1.) They are: (1) Method of major fractions; (2) method of equal proportions; (3) method of harmonic mean; (4) method of smaller divisors, and (5) method of greater divisors. See, also, “Report of the National Academy of Science to the Speaker of the House of Representatives,” February 4,1929 (entered in Congressional Record, 70th Congress, 2d Session, Vol. 70, Part 5, pp. 4966, 4967); “Report Upon the Reapportionment of Representatives by the Advisory Committee to the Director of the Census,” submitted to the Senate Committee on Census, 1921 (entered in Congressional Record, 69th Congress, 1st Session, Vol. 67, Part 7, pp. 7078, 7080); Schmeckebier, “Congressional Apportionment,” The Brookings Institution, 1941; “Report of Committee on Apportionment of the American Political Science Association," 1950. (Reprinted in The American Political Science Review, Vol. 45, No. 1, Mar. 1951, pp. 153-157.) Huntington’s study reads, in part:
In this study, in order to meet realistically the actual situation in Congress when an apportionment bill is up for debate, the emphasis is shifted from the process of computation to the tests of fairness which the final result should satisfy. The fairness of the final result, not the technical process of achieving this result, is regarded as the important thing. For example, suppose an actual apportionment bill proposes to give Alabama 9 seats, Arizona 1, Arkansas 7, etc., in a House of any given size (say 435). The fundamental question which Congress (our legislature) has to face is this: Does the distribution proposed in the bill put each State (county) as nearly as may be on a par with every other State, or would the bill be ‘improved’ by transferring a seat from such-and-such a State to such-and-such another State?
“To answer this question, Congress must decide what goal or aim it has in mind when discussing proposed ‘improvements’ in a given bill. It is generally agreed that Congress, consciously or unconsciously, has had two principal aims in view: First, to equalize the ‘congressional districts’ among the several States; and secondly, to equalize the ‘individual shares’ among the several States. What the modem mathematical theory has done is to establish clearly the relations between these two aims and the five possible methods listed above.
“The mathematical facts are as follows: The method of smallest divisors and the method of greatest divisors fail on both these aims; the method of major fractions fails on the first aim; the method of harmonic mean fails on the second aim; the method of equal proportions achieves both aims.”
Without detailing the congressional history with respect to the apportionment of representatives among the several states in ac cordance with the pertinent part of Section 2 of the Fourteenth Amendment, it is sufficient to say that Congress wrote into federal law that the number of representatives to which each state would be entitled under an apportionment of the then existing number of representatives would be ascertained by the method known as the method of equal proportions. (2 U. S. C. A. § 2a.)
The method of equal proportions has been approved by two scientific bodies: The Advisory Committee to the Director of the Census, in 1921, and the National Academy of Sciences, in 1929. The report of the Census Advisory Committee concludes as follows: “The method of equal proportions, consistent as it is with the literal meaning of the words of the Constitution, is logically superior to the method of major fractions.” The report of the National Academy of Sciences concludes as follows: “The method of equal proportions is preferred by the committee because it satisfies the test (of proportionality) when applied either to the sizes of congressional districts or to numbers of Representatives per person, and because it occupies mathematically a neutral position with respect to emphasis on larger and smaller States.” (Edward V. Huntington, Department of Mathematics, Harvard University: “A Survey of Methods of Apportionment in Congress,” 76th Congress, 3rd Session, Senate Document No. 304, p. 2.)
The state of Arkansas has a board composed of the governor, attorney general and secretary of state, which is charged with the duty of apportioning and reapportioning senators to senatorial districts, and representatives to its 75 counties. Its Constitution directs that after one representative was assigned to each county, regardless of the county’s area or population, the remaining 25 shall, as nearly as practicable, be equally distributed among the more populous counties, “in accordance with a ratio to be deter-mind by the population of said counties as shown by the federal census next preceding any apportionment.” (Shaw, Autry and Shofner v. Adkins, Gov., 202 Ark. 856, 153 S. W. 2d 415, Syl. f 2.) Actions were filed against the apportionment board attacking the method of assignment of representatives to multi-district counties. In that case, the Supreme Court of Arkansas considered the five methods of apportionment and fully explained and illustrated the operation of each method, and concluded that because the method of equal proportions had been approved by scientific bodies and because it appeared to give the best results insofar as apportioning the state of Arkansas was concerned, that method was adopted as being applicable to the apportionment of representatives in accordance with the Arkansas Constitution. In the opinion it was said:
“According to Schmeckebier [supra], no modern method of apportioning representatives uses any ratio in determining the result. A ratio, he says, is often referred to, but it is obtained after the apportionment is made from a so-called priority list. All modern methods — equal proportions, major fractions, harmonic mean, smallest divisors, and greatest divisors — assign the representatives to each state, in the case of congressional action, and to each county, in the case of state procedure, by means of priority lists, which indicate the apportionment to be made from the definite number — in Congress, ordinarily 435, and in Arkansas definitely 100. As the federal Constitution provides that one representative shall be assigned to each state, no question of priority would exist if the house consisted of 48 members. Each state obtains one representative, regardless of its population. Therefore, the priority list begins with the forty-ninth member of the house, and when completed it shows which states would receive additional members for any size house. As applied to reapportionment in Arkansas, the priority list begins with the member which we may designate as 76. In reality, priorities relate only to 25 members. Under our constitutional provision, the division of these 25 representatives is in accordance with a ratio to be determined by the population of such counties, exclusive of the remaining 75; hence, the priority list must be compiled and the ratios ascertained.” (l. c. 862, 863.)
In Asbury Park Press, Inc. v. Woolley, 33 N. J. 1, 161 A. 2d 705, the Supreme Court of New Jersey, following Shaw, Autry and Shofner v. Adkins, Gov., supra, and in speaking of the five mathematical formulas used in the apportioning of representatives, said:
“. . . Informed students of these formulas speak of some of them as favoring the larger counties or states, while others favor the smaller ones. One formula, the method of equal proportions, seems generally to be regarded as producing the smallest relative differences in population per assemblyman and the smallest relative difference in the individual share in an assemblyman. . . .” (l.c.9.)
Much more could be said on the subject, but it is sufficient to say that from the authorities classed as experts, from congressional action, and from the highest courts of the states which have considered the question, the method of eqal proportioning is generally regarded as producing the smallest relative difference in population per representative, and the smallest relative differences in the individual share in a representative. The fact that the National Academy of Sciences has given its endorsement to the method of equal proportions in preference to other systems, is highly persuasive, and we are of the opinion that this is the method which produces as close an approximation to exactness as possible in the apportionment of the 20 “extra” seats in conformity with the constitutional mandate to apportion the state into substantially equal legislative districts and each county should be divided into as many districts equal in population as it has representatives. Apportionment by such formula in good faith to the Kansas population would result in an allocation of seats to the counties based upon population which could not be challenged as inequitable. That is not the case with respect to the existing apportionment of the house of representatives. When the method of equal proportions is applied to the 1961 apportionment act, considered in the light of the 1960 census, certain counties are assigned more representatives and other counties are assigned less respresentatives than they are entitled to by population.
As we have seen, the 1963 regular session failed to enact valid apportionments of the house of representatives and senate for reasons hertofore related. However, the duty to properly apportion legislative districts is a continuing one, imposed by constitutional mandate upon the legislature, notwithstanding the failure of any previous session to make such a lawful apportionment, and this duty may be performed prior to commencement of the next pending electoral process by a special session called by die governor for that purpose pursuant to Article 1, Section 5 of the Kansas Constitution. The parties are agreed that notwithstanding the effect of this opinion holding the 1961 and 1963 apportionment acts to be unconstitutional and void in violation of Article 10, Section 2, and Article 2, Section 14, the legislature may meet at the call of the governor in special session and lawfully enact valid apportionment acts. The appellants suggest, however, that from the time of the election of each of the 125 representatives in 1962 and the 40 senators in 1960 until the date of this decision declaring the 1961 and 1963 apportionment acts to be unconstitutional and void, each member was a de facto legislator and his acts were acts of a de facto- official, and that upon the filing of this opinion, those who were so elected have no power to respond to die proclamation of the governor calling a special session and to enact new apportionment laws in conformity with the requirements of our Constitution. The point is not well taken. In the first place, the legal status of the members of the house and senate is not reached in this suit, for it seeks only to bar use in the future of any existing invalid apportionment statutes as the basis for electing members of succeeding legislatures and not to oust present members of either the house or senate, or to chai lenge their right to sit. In the second place, when each of the present 125 members of the house and 40 senators was duly elected, he was elected from a district then created by law for a term of two years and four years, respectively. (Article 2, Section 29.)
In Farrelly v. Cole, 60 Kan. 356, 56 Pac. 492, it was held that the matter of apportionment is only a provision for future elections; and is not designed to affect the title to office or the tenure of the members making the apportionment; that a member of the legislature, unlike a county or township officer, has no official functions to perform within the district or territory from which he is elected; that members of the legislature are constitutional officers with fixed terms of office and are entitled to hold their respective offices for the constitutional period they were elected, and in the absence of a provision expressly provided when their term shall begin, it is competent for the legislature to fix the commencement of the term. This has been done by statute (G. S. 1949, 25-316) which provides that the regular term of office for members of the house and senate shall commence on the second Tuesday in January next succeeding their election. Article 2, Section 8 declares that each house “shall be judge of the elections, returns and qualifications of its own members.” This is a grant of power, and constitutes each house the ultimate tribunal as to the qualifications of its own members. The power is exclusively vested in each house and cannot by its own consent, or by legislative action, be vested in another tribunal or officer, and the power continues during the entire term of office, (State, ex rel., v. Gilmore, 20 Kan. 551; State, ex rel., v. Tomlinson, 20 Kan. 692, 702.) It follows that when a member of the legislature is duly and regularly elected from a legislative district then created by law and his election and qualifications have been approved by the house to which he was elected and he takes the oath of office prescribed by law, he is entitled to exercise the legislative powers of his office during the term for which he was elected, at any regular or budget session or at a special session called by the governor. The fact that the present members of the legislature were duly elected from legislative districts under the 1947 apportionment law of the senate and the 1961 apportionment act of the house, which are declared to be unconstitutional and void by this opinion, does not preclude such members from meeting at a budget session or at a special session. They are cle jure officers for the term for which they were elected and competent to enact legislation at either of those sessions, including at a special session, apportionment statutes apportioning the state into equal or substantially equal legislative districts. (State v. Latham & York, 190 Kan. 411, 426, 375 P. 2d 788.)
The 1964 election is the next election of members of the legislature. The holding of this election will take place at a definite known date under the existing apportionment statutes unless the defendants are restrained from using them, or the legislature enacts new valid apportionment prior to such election. Under G. S. 1949, 25-204 and 25-311, the secretary of state is charged with initiation of acts precedent to the holding of primary and general elections, that is, the preparation of notices of the primary election and the certification of nominees for the general election. That process will be initiated by him by giving notices of the 1964 primary election on or before April 2,1964. (G. S. 1949, 25-204.) Information as to representative and senatorial districts must necessarily be in his hands for a sufficient time prior to that date to permit proper preparation of the required notices.
It is a matter of public knowledge that the legislature will convene in budget session on the second Tuesday in January, 1964, for 30 days and then adjourn. (Art. 2, Sec. 25.) This court feels certain that the governor will invoke constitutional processes and call the legislature into special session which will then be assembled at the state capítol, and that the legislature will enact valid apportionment acts apportioning the state into legislative districts pursuant to Article 2, Section 2, and Article 10, Sections 1 and 2 of our Constitution. Accordingly, if reapportionment of the state is accomplished in full compliance with the constitutional mandate, it may not be set aside by this court during its constitutional life and would not be subject to alteration until the next constitutionally established reapportionment period. Consequently, it would follow that judicial action would cease and the judgment of the court below pertaining to equitable relief as well as the manner of holding future elections as therein directed would die of its own terms.
For reasons stated, we withhold further determination of the appeal, except, of course, our jurisdiction to hear the matter further. This will afford the governor an opportunity to call the legislature into special session, and for it to consider the adoption of apportionment acts based upon the 1963 state census in accordance with Article 10, Sections 1 and 2. In the meantime the record will be held for the purpose of such further action as is deemed advisable and within such reasonable time as the circumstances may demand.
APPENDIX A
Population of Kansas
as reported by the county assessors to the Kansas State Board of Agriculture, as of March 1, 1960, January 1,1962, and January 1,1963.
1960 1962 1963
Total — 2,130,579 Total — 2,165,009 Total — 2,172,296
County 1960 1962 1963
Stanton ................... 2,141 2,305 2,324
Greeley ................... 2,178 2,189 2,241
Wallace................... 2,214 2,296 2,336
Wichita ................... 2,820 2,858 2,898
Haskell ................... 3,012 3,339 3,626
Kearny ................... 3,064 3,108 3,227
Hodgeman ................ 3,116 3,172 3,185
Lane ..................... 3,148 3,223 3,271
Hamilton ................. 3,187 3,339 3,282
Comanche ............... 3,288 3,246 3,096
Morton ................... 3,317 3,783 3,838
Clark ..................... 3,491 3,556 3,567
Chase ................. 3,978 3,988 3,978
Logan ................... 4,158 4,322 4,343
Gove ..................... 4,304 4,498 4,367
Stevens ................... 4,320 4,517 4,505
Sheridan .................. 4,395 4,339 4,299
Gray ..................... 4,408 4,598 4,651
Kiowa .................... 4,613 4,739 4,686
Cheyenne ................. 4,753 4,755 4,753
Grant..................... 5,220 5,379 5,917
Scott ..................... 5,242 5,558 5,706
Elk ....................... 5,363 5,157 5,015
Rawlins ................... 5,381 5,222 5,131
Edwards .................. 5,511 5,442 5,332
Meade .................... 5,559 5,712 5,786
Trego..................... 5,571 5,369 5,256
Woodson................ 5,584 5,426 5,316
Graham.................. 5,674 5,492 5,458
Ness..................... 5,696 5,677 5,652
County I960 1962 1963
Lincoln ................... 6,030 6,048 6,043
Chautauqua ............... 6,054 5,912 5,895
Decatur................... 6,121 6,126 6,125
Rush ..................... 6,363 6,207 6,216
Sherman ................. 6,725 6,805 6,802
Wabaunsee................ 6,741 6,624 6,653
Ottawa ................... 7,006 7,257 7,029
Thomas ................... 7,513 7,403 7,432
Osborne .................. 7,663 7,645 7,528
Morris .................... 7,676 7,575 7,548
Jewell ................... 7,719 7,395 7,395
Stafford ................... 7,812 7,643 7,630
Smith .................... 7,963 8,009 8,016
Ellsworth ................. 8,220 8,138 8,180
Norton.................... 8,271 8,363 8,420
Linn...................... 8,590 8,520 8,357
Coffey ..................... 8,635 8,540 8,459
Barber .................... 8,754 8,561 8,490
Mitchell .................. 8,973 8,885 8,905
Phillips ................... 9,088 9,639 9,840
Pawnee ................... 9,342 9,268 9,312
Anderson ................. 9,648 9,369 9,187
Rooks .................... 9,840 9,598 9,279
Harper ................... 9,879 9,806 9,638
Republic .................. 10,083 9,772 9,712
Doniphan ................. 10,344 10,234 10,148
Jackson ................... 10,381 10,302 10,356
Kingman.................. 10,480 10,634 10,528
Clay .................... 10,810 11,052 11,031
Jefferson .................. 11,261 11,234 11,001
Washington ............... 11,345 11,012 11,056
Greenwood................ 11,571 11,176 11,012
Russell.................... 11,850 11,551 11,517
Pratt ..................... 12,079 12,149 12,025
Pottawatomie.............. 12,125 12,236 12,021
Osage .................... 13,176 13,253 13,185
Nemaha .................. 13,431 13,214 13,225
Rice ...................... 14,041 14,021 13,688
Wilson ................... 14,065 14,051 14,207
Brown .................... 14,536 14,348 14,439
County 1960 1962 1963
Cloud .................... 14,876 14,801 14,603
Marion ................... 15,535 15,411 15,405
Finney.................... 15,726 16,732 17,206
Seward ................... 16,023 16,928 18,222
Bourbon .................. 16,405 16,300 16,367
Marshall .................. 16,562 16,156 15,982
Allen ..................... 17,005 17,260 17,086
Miami .................... 18,981 18,663 18,532
Neosho ................... 19,812 19,647 19,455
Ford ..................... 20,100 20,897 21,371
Franklin .................. 20,412 20,629 20,560
Atchison .................. 20,416 19,926 19,881
Ellis ...................... 20,862 21,467 21,698
Dickinson ................. 22,523 23,209 22,642
Cherokee ................. 22,714 22,447 22,089
Geary .................... 22,886 24,539 23,814
McPherson ................ 23,886 24,253 24,014
Lyon ..................... 24,584 25,166 25,298
Harvey ................... 25,775 25,556 25,803
Sumner ................... 26,134 25,704 25,103
Labette ................... 26,353 26,389 26,718
Riley ..................... 29,985 32,593 32,045
The following are the thirteen counties which were apportioned more than one representative district pursuant to G. S. 1961 Supp., 4-103, and the number of representative districts is indicated in parentheses.
Number of representatives County 1960 1962 1963
(2) Barton........ 34,147 34,226 34,798
(2) Douglas ...... 35,414 36,602 36,904
(2) Cowley ....... 37,114 36,512 36,517
(2) Leavenworth .. 37,338 38,590 39,131
(2) Butler ........ 38,120 37,743 37,653
(2) Crawford ..... 39,074 37,091 38,084
(2) Saline ........ 46,459 50,425 47,800
(2) Montgomery .. 46,508 45,409 45,058
(2) Reno ......... 59,116 59,969 60,752
(3) Shawnee...... 134,440 143,304 144,163
(3) Johnson ...... 138,998 157,016 164,180
(4) Wyandotte .... 193,987 193,696 196,667
(5) Sedgwick ..... 325,399 323,574 322,113
APPENDIX B
The population of representative districts apportioned to multi-district counties pursuant to G. S. 1961 Supp., 4-103.
District 1961
No. County Population
4 Leavenworth .............................. 23,707
5 Leavenworth .............................. 14,214
6 Wyandotte ................................ 34,465
7 Wyandotte ................................ 41,935
8 Wyandotte ................................ 44,240
9 Wyandotte ................................ 70,050
10 Johnson ................................... 66,420
11 Johnson................................... 29,500
12 Johnson................................... 51,679
13 Douglas .................................. 20,021
14 Douglas................................... 16,570
21 Crawford ................................. 11,559
22 Crawford ................................. 25,532
25 Montgomery............................... 24,643
26 Montgomery .............................. 20,766
32 Shawnee .................................. 44,513
33 Shawnee .................................. 41,155
34 Shawnee .................................. 34,552
47 Cowley ................................... 19,944
48 Cowley ................................... 16,302
49 Butler .................................... 21,707
50 Butler .................................... 17,036
60 Saline .................................... 24,198
61 Saline .................... 23,658
64 Sedgwick ................................. 59,004
65 Sedgwick ................................. 55,593
66 Sedgwick ................................. 69,810
67 Sedgwick ................................. 58,901
68 Sedgwick ................................. 80,577
74 Reno ..................................... 50,451
75 Reno ..................................... 9,518
77 Barton .................................... 18,885
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The opinion of the court was delivered by
Hatcher, C.:
The appellees have filed a motion for rehearing challenging that part of the original opinion which permits a widow to assert her statutory right of inheritance against a trust made by her husband, now deceased, in which he reserved to himself the income for life with the right to revoke.
We have considered the motion for rehearing and find no issues pertaining to the question which were not fully considered and resolved by the original opinion. The motion for rehearing is denied.
However, the motion raises one question which should be clarified. The appellees challenge our general conclusion as to the validity of the trust which reads:
“The transfer of property to a trustee under an agreement whereby the settlor reserves to himself the income during his life with the power to revoke, is valid by virtue of G. S. 1949, 33-101 and 67-414, subject only to the rights of creditors and the statutory rights of a surviving spouse.” (l. c. Syl. 1.)
In their motion for rehearing appellees state:
“It would indeed be anomalous if this trust were void as to creditors, but beyond the reach of the widow. What the appellees wish to demonstrate to this court is that the trust in question is void neither as to the creditors or the widow.”
It is the contention of the appellees that the trust instrument in question would be valid even as against creditors under the decision in In re Estate of Morrison, 189 Kan. 704, 371 P. 2d 171 where it is stated:
“While it is true that here the trust was revocable upon certain conditions and dividends were payable to Clarence during his lifetime, it nevertheless contained a specific beneficiary — Daisy—and we believe it may not be said that it was made for the ‘use’ of Clarence within the meaning of the mentioned statute. Its terms directed the stock be issued in his name as trustee for her — the beneficiary. It stood unrevoked as of his death, and by its very terms title to the stock then became vested absolutely, in her as the named beneficiary.” (p. 709.)
The Morrison case was not discussed in the original opinion. The facts were so materially different that it was not believed to be applicable. The Morrison case was governed by the provision of § 33-101 before its amendment in 1949; the corpus of the trust constituted but a very small part of the settlor’s estate; the wife was the final beneficiary of the trust; the dispute was between the representatives of the estates of the trustor and the beneficiary, and neither the rights of a surviving spouse nor the rights of creditors were in question.
What was said in the Morrison case is not authority for holding that such a trust as was under consideration in the original opinion would not be construed as for “the use of the person or persons making the same,” as that term is used in G. S. 1949, 33-101, where the rights of creditors or a widow’s right of inheritance were affected by the trust.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Price, J.:
This action was brought in order to obtain a judicial construction of a “mineral” reservation contained in a deed to a 320-acre tract of land in Rarber county.
The specific question presented is whether the reservation in question includes gypsum.
The trial court held that it does not, and the appeal is from that ruling.
The facts are not in dispute.
On March 8, 1917, defendant, James E. Ely, acquired title to the tract of land in question. Shortly thereafter he executed a deed to one Lytle to an undivided one-half interest in the property.
On May 2,1921, Lytle executed a deed to a bank to the undivided one-half interest owned by him. This deed contained an exception and reservation as follows:
“Except all gas, oil and mineral rights which parties of the first part reserve and the right to enter upon said premises for the sole and only purpose of mining and operating for oil and gas, laying pipelines, building tanks, power stations, and structures thereon to produce, save and take care of said products.”
On July 5, 1923, the bank deeded its interest in the property to one Trekell. This deed contained no exception or reservation.
Later, Trekell deeded his undivided one-half interest in the land to James E. Ely — he being the one who, in 1917, had deeded the undivided one-half interest to Lytle. This deed from Trekell to Ely contained no exception or reservation.
On July 29, 1943, James E. Ely, being then the owner of the entire interest in the property, subject to the exception and reservation contained in the deed from Lytle to the bank, executed a deed to all of the property to Ryron Smith. This deed contained the following reservation:
“As a most important part of the consideration for the purchase of this land, party of the first part hereby reserves, all of the oil, gas, casing-head gas and other liquid semi-solid and solid minerals in and under and that may be produced from the above described lands, together with the rights of ingress, egress and regress to and from the said premises for the purpose of mining, exploring, operating, producing, storing and removing therefrom, all of the oil, gas, casing-head gas and other liquids semi-solid and solid minerals including all of the lease interests and future rentals on said lands for said minerals. And all of the mineral rights and all other rights hereinbefore set out, are hereby as fully retained by first party, and are to be as full and free as though this deed had not been executed.”
The foregoing reservation is the subject of this lawsuit, and the question is — does it include gypsum?
In 1951 Ryron Smith deeded the property in question to plaintiffs A. J. Keller and wife, subject to the exceptions and reservations above noted. Plaintiffs later sought to sell the land to the National Gypsum Company for the purpose of mining and removing the gypsum therefrom. A dispute arose as to the ownership of the gypsum — hence this lawsuit to determine whether gysum is included in the reservation in the 1943 deed from Ely to Smith, set out above.
In deciding the question the trial court filed a memorandum opinion setting forth its reasons for holding that the reservation in question does not include gypsum, and we quote material portions of its decision:
“The issues to be determined herein:
“(1) Is the exception and reservation made in the Lytle deed to the Security Trust and Savings Bank a legal and valid reservation of oil, gas and mineral rights and does said reservation include gypsum?
“(2) Does the reservation in the James E. Ely deed to Byron Smith reserve and retain in the grantor gypsum in addition to the oil, gas and other minerals?
“Considering first the number (1) issue and the Lytle deed, I have heretofore overruled the demurrer of the defendant, Ely, to the Lytle cross petition. I shall now have to hold that the Lytle deed contains a valid reservation binding upon all of the parties herein. Does this reservation include gypsum? I think not. I think the doctrine of ejusdem generis applies in this case. I think further that the words, ‘with the right to enter upon said premises for the sole and only purpose of mining and operating for oil and gas, etc.,’ are words of limitation upon the preceding phrase, ‘all gas, oil and mineral rights.’ Therefore, I shall hold that the Lytle deed does reserve one-half of all oil and gas in and under the land described but does not include any gypsum in or under the premises in question.”
With respect to the reservation in the deed from Ely to Smith, and which is the crux of this lawsuit, the court held:
“Now, as to the Ely reservation in the deed recorded in Volume 57, at page 202, in the office of the register of Deeds of Barber County, Kansas. This deed was made in July, 1943, when both grantor and grantee should have been fully cognizant of the fast-developing oil and gas fields in Barber County. They also must have known of the gypsum mining and/or quarrying in the area. According to the map and bulletin of the State Geological Survey, they could perhaps have seen the gypsum outcropping on the land in question. The reservation is quite specific and inclusive as to oil and gas and kindred minerals such as axle grease and carbons which probably are semi-solids or solid minerals. If the grantor had intended to reserve gypsum, how easy it would have been to insert the one word ‘gypsum’ in the reservation. Sand is also a mineral. It is a well-known fact that much sand is found in Kansas soil. Even quartz for the manufacture of glass is a suspect in the area. We have all seen land tracts with sand and gravel pits that became as worthless appearing as the exhausted coal-mining areas in Southeast Kansas. Did the grantee particularly intend that the grantor was reserving sand and gravel under the term ‘minerals?’ From the meager evidence I can only assume that the gypsum might be taken either through mining or quarrying. If the latter, could either of the parties have intended that little or much of the surface of the land in question under the reservation was subject to being laid waste by the taking of the gypsum and/or sand and gravel? If the grantee acquired this property for a song, perhaps ‘yes;’ if for a valuable consideration, certainly ‘no.’
“In 58 C. J. S. 17, supported by the case of In re Estate of Trester, 172 Kan. 478, appears one of the rules which should be determinative of this case.
“ ‘In determining its meaning in a particular case, regard must be had not only to the language of the instrument in which it occurs, but also to the relative position of the parties interested, and to the substance of the transaction which the instrument embodies.’
“Considering such evidence as appears of record herein and the general knowledge of people of the area, I think the rule of ejusdem generis is most applicable to this reservation. I shall, therefore, hold that the reservation in the Ely-Smith deed does reserve one-half of all oil, gas and kindred minerals and lease interests as set forth in said reservation but does not include the gypsum in or under the land in question.”
Accordingly judgment was entered—
“1. That the Plaintiffs are the owners of all gypsum and gypsum interest in and under the land described in Plaintiffs’ Petition and they have full rights to sell same and permit the quarrying or mining thereof.”
and defendant Ely has appealed and contends that the reservation in the 1943 deed from him to Smith reserved all minerals and thus includes gypsum — and therefore he is entitled to the gypsum in and under the land in question.
Notwithstanding the several arguments advanced by defendant Ely in support of his contention, we believe the trial court’s analysis of the matter is sound and that a correct decision was reached. As reflected by its decision, it was of the opinion the rule of ejusdem generis applied in construing the reservation in question. Briefly stated, that rule is a well-known maxim of construction to aid in ascertaining the meaning of a statute or other instrument, the doctrine being that where an enumeration of specific things is followed by some more general word or phrase, such general word or phrase is to be held to refer to things of the same kind with respect to a classification which immediately precedes it — that is to say, where general words follow particular words in an enumeration describing the subject matter, general words are construed to embrace only objects similar in nature to those enumerated by antecedent specific words. (28 C. J. S., Ejusdem, p. 1049.)
In Williams v. Vincent, 70 Kan. 595, 79 Pac. 121, 109 Am. St. Rep. 469, 68 L. R. A. 634, it was said:
“The rule of interpretation employed is known technically as that of ejusdem generis. It requires that the meaning of general tenns be restricted by particular words preceding them. . . .” (p. 597.)
See also Parman v. Lemmon, 119 Kan. 323, 327, 244 Pac. 227, 44 A. L. R. 1500.
In referring to the rule in 16 Am. Jur., Deeds, § 176, p. 537, it is said:
“Similarly, in the construction of deeds and what passes thereunder, if after an enumeration of particulars, there is a sweeping clause comprising all other things, the scope of such a clause is restricted to things, within the description, of the same kind as the particulars enumerated.”
Generally speaking, a deed is to be construed strictly against the grantor, and to confer upon the grantee the greatest estate that its terms will permit. Our statute, G. S. 1949, 67-202, provides:
“. . . and every conveyance of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear or be necessarily implied in the terms of the grant.”
In In re Estate of Trester, 172 Kan. 478, 241 P. 2d 475, an instrument entitled “Sale of Oil and Gas Royalty” which conveyed an “interest in and to all of the oil, gas and other minerals in and under, and that may be produced from the following described land,” was construed as not including a deposit of clay.
In Davis v. Plunkett, 187 Kan. 121, 353 P. 2d 514, a mining lease granting a right “for the sole purpose of mining and removing Volcanic Ash, and all other minerals or mineral derivatives from the following described land” was construed as not including oil, gas or other petroleum products.
The Davis case quoted with approval the following statement found at pp. 482 and 483 of the Trester case:
“It is true that in classifying things as animal, vegetable and mineral, everything that goes to make up the earth comes within the general classification of minerals. But this general classification cannot be used for the interpretation of instruments granting specific rights. With respect to that matter the term ‘mineral’ is not a definite one capable of universal application. It is susceptible to limitations according to the intention of the parties using it, and in determining its meaning in a specific instrument not only the language of the instrument in which it occurs but also the relative positions of the parties interested and the substance of tire transaction which the instrument embodies must be taken into account.”
In the case before us it was stipulated that gypsum had been produced in Barber county as early as 1912, and that it was being produced at the time the deeds in question were executed. It also was stipulated that when the deed from defendant Ely to Smith was executed in 1943 there was oil and gas production about six miles from the tract involved.
Entirely aside from the fact that had the grantor (Ely) intended to reserve gypsum it would have been very easy to have specifically said so in the quite lengthy reservation, we believe that application of the foregoing rules to this case makes it clear that the general terms contained in the reservation must be deemed to embrace and include only those things similar in nature to those previously specifically enumerated — that is, oil, gas and kindred minerals. We agree with the trial court that the reservation does not include gypsum.
The judgment is affirmed.
Fontbon, J., not participating. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought in the district court of Leavenworth county by the administrator do bonis non of the estate of John Brennan, deceased, against Noah Newbanks, a^ former administrator of the same estate, and the sureties on his official bond, to recover assets in his hands belonging to the estate and not paid over to his successor. The case was tried before a jury, who returned a special verdict. Upon this, judgment was rendered in favor of the administrator do bonis non for $4,237.36, to reverse which this proceeding in error has been instituted. The evidence was not preserved, so that the case stands before us upon the pleadings and the special verdict. Upon these, is any error apparent in the judgment? The amount of the judgment is made up of four items: 1st, $566.56, the value of the use of the property belonging to the estate used by the administrator for his personal benefit; 2d, $2,000, cash paid to the administrator on a sale made by him; 3d, $605.80, interest on the above amounts; and 4th, $1,065, the value of personal property converted by him to his own use. That as general propositions, an administrator is chargeable with the value of the use of property belonging to the estate, used by him for his personal benefit, with money received by him on the sale of property of the estate, and with the value of such property converted to his own use, and that an administrator do bonis non may recover therefor against the administrator and his sureties, will not be questioned. (Gen. Stat., p. 435, § 26.) So that upon these findings alone, the judgment would unquestionably be correct. We must look therefore to the defense, and see what facts are shown to avoid such liability. And there are three matters of defense: 1st, that there was a final settlement of the estate made by the administrator, and approved by the probate court, by which the estate was found to be in debt to the administrator, and that therefore this matter is res judicata; 2d, that the property which passed into the hands of the administrator was the partnership property of the firm ■ of Brennan & Atkins, and that therefore the sureties on the bond of the administrator of the individual estate of Brennan are not liable; and 3d, that as to the $2,000, the sale under which it was received was set aside by the probate court. Of these in their order.
Was there a valid final settlement? Administration on the estate was had in Ellsworth county. A copy of the records of the probate and district courts of that county, affecting this estate, is made a part of the special verdict, and to that must we look for an answer to the question. It appears from that, that on August 18th 1868, Newbanks was appointed administrator, and on the 22d his bond, with Mu-sick and Light as sureties, was approved. On the 22d of May 1869, at the close of an order setting aside a sale of personal property, is an order in these words: “It is further adjudged that if sufficient security be given, that the administrator, at the expiration of one year from the date of his letters of administration, turn over all the assets of the estate to the next of kin of the deceased, and make a full statement thereof.” On the 27th of May, on-application of his sureties, the administrator was ordered to “file additional security within ten days.” This order does not appear to have been complied with. On June 14th, this order was entered: “It is ordered by the court, that Noah Newbanks, administrator, be required to turn all books and papers and money belonging to the estate of John Brennan deceased, to Miles Brennan, heir-at-law of said estate, by the 1st day of July 1869.” On July 9th is this entry: “In compliance with an order of the court dated June 14th 1869, Noah Newbanks, administrator of John .Brennan •deceased, comes into court to make final settlement, presented the following bills for allowance.” Then follows a long list of claims, which seem to have been presented upon several succeeding days, amounting in the aggregate to $12,252.61, and at the close are these words: “July 24th 1869, the above accounts credited to Noah New-banks, administrator of John Brennan deceased.” On July 23d is filed what is called “an inventory of property sold,” but which includes money received from other sources than sales, and amounting to $11,834.21. On July 24th is this entry: “The letters of administration of Noah Newbanks of the estate of John Brennan deceased are hereby revoked.” Then, on July 25th, appears this entry: “It appearing to the court upon final settlement of Noah Newbanks, administrator of John Brennan deceased, that the said administrator has properly disposed of the'personal property of the said estate, and has received as assets of the same, from various sources, to the value and amount of $11,834.21, and has paid and distributed claims and expenses of the same in the amount of $12,260, and that there is now in his hands and unaidministered the following personal property belonging to the said estate, to-wit, 87 mules, * * * it is therefore ordered and adjudged, that the said Noah Newbanks turn over and deliver to the said Wm. Brennan, heir-at-law and next of kin to the said John Brennan deceased, the said property aforesaid.” Then follows, of same date, a bond by Wm. Brennan, with sureties, approved on same day by probate judge, and which recites among other things, that, “ whereas the letters of administration aforesaid have been revoked by said court, leaving a part of said estate unadministered, and whereas the said Wm. Brennan has asked for and obtained an order from said court for the said estate unadministered to be turned over to him as the heir-at-law as aforesaid, now therefore, if the said Wm. Brennan shall well and truly pay or cause to be paid all legal claims that are due from and unpaid by said estate, of any nature or character whatever, then this obligation-to be void.” Then appear notices of appeal both by the administrator and "Wm. Brennan, the former appealing from the disallowance ■of two small claims amounting to $283.66, and the order to ■turn over the personal property, and the latter from the allowance of some eleven items included in the administrator’s ■■statement, and amounting to $3,320.19. The notices of appeal did not on either side indicate an appeal from the entire settlement, but only from those matters specifically named as ■ above stated. Thereafter was filed in the probate court a transcript of the proceedings in the district court, which recited the appearance of both parties therein, and an adjudication affirming the disallowance of the $283.66, and disallowing the $3,320.19. No order seems to have been entered by the probate court upon its records on the filing of this transcript. On November 23d 1869, the defendant in error was appointed administrator cle bonis non. An order was also •entered directing Newbanks to turn over the money, papers and other valuable property to the administrator de bonis non. It also appears there were debts due by the estate at the time ■of the settlement. No notice of final settlement, or any proof of publication of one, or any finding or reference by the court to one, can be found. To the transcript is attached a certificate of the judge, that the same is a “full, true, perfect and complete transcript of all the pleadings and proceedings, records and papers, filed and had in said court in and about the matter of the administration of the estate of John Brennan, deceased.” To this let it be added, that during the few months of these proceedings, four gentlemen held in succession the office of probate judge, and that the transcript discloses a gross disregard of the requirements of law in the management of the estate, and in the record or proceedings, or both, and we are in a position to determine the validity and effect of the so-called “final settlement.” That settlements of administrators, approved by probate courts, are in the nature of judicial determinations, and binding upon the estate, has been decided. Shoemaker v. Brown, 10 Kas., 393. So that this settlement, however irregularly entered, is an adjudica tion against the estate, and all who represent it, or claim from it, as to all matters actually or by necessary implication covered by its terms. But there is a great difference between ordinary annual settlements, and what is technically known as a final settlement. The former is simply a statement of the administrator, that he has received such amounts, and paid out such; and the approval finds that statement to be true. It is therefore in the nature of an adjudication, a judicial determination. But it is, so to speak, only a present adjudication, and prima fade correct — one made for the purpose of enabling the court to keep watch of the estate, and to control the disposition of its assets, and the payment of its debts. Unquestioned, it is accepted as an adjudication, and made the-basis and starting point of further administration. But it may be challenged without appeal, and in the same court, and without motion for re-hearing, or any direct proceedings to-set it aside; and any errors or mistakes in it may be corrected at any subsequent settlement. Gen. Stat., 462, §158. These accounts are settled ex parte, and without even the pretense-of notice by publication or otherwise to any parties interested. But the final settlement of an estate is a more stringent and less easily avoided adjudication. It is more emphatically a judgment. True, it may by the probate court be opened up,, and the administration continued; but this requires a direct proceeding therefor. While generally ex parte, yet it can only be made upon notice. Gen. Stat., 461, §§150, 151; Winborn v. King, 35 Miss., 157; Revis v. Patty, 43 Miss., 343. The-idea is, that it is that adjudication of the management of the-estate, to which all interested are directly summoned, and by which all having a day in court are concluded. It is a direct-adjudication that the estate is fully administered, and that means either that all the debts are paid, or that all the assets-are exhausted. It implies that the administrator has received not merely all the money he admits in his statement, but also-no more. In other words, that he has fully accounted for all that he has received, or ought to have received, and that, so-far as it was sufficient, he has used it in the discharge of the- debts. See upon this question, as pointing out distinctly the difference between an annual and final settlement, Winborn v. King, 35 Miss. 157; Bronson v. Ward, 3 Paige, 189, and especially Picot v. Riddles, Adm’r, 35 Mo. 39. This case has a full discussion of the question, and a citation and review of the authorities, and its conclusions are in accord with the views herein expressed. There may be a settlement which is, so to speak, final as to the administrator, without being strictly a final settlement. Thus, if for any reason an administrator’s letters are revoked, and administration intrusted to an administrator de bonis non, the settlement made by such administrator at the time of the revocation is final as to him, but is not technically a final settlement. It is no more than an ordinary settlement. And that, it seems to us, must be the fact concerning the so-called final settlement in this case. We do not rest this conclusion upon any mere technical omission, for the orders and proceedings of probate courts are to receive a reasonable construction. We must endeavor to ascertain what was intended, and not by imposing a technical meaning on terms attempt to force a construction not designed. But no notice of a final settlement appears to have been given. Perhaps the evidence of the record does not prove that there was no notice. Perhaps the presumption would be, that all things necessary to confer jurisdiction were regularly done. That is a question of law, into which we do not care to enter. It is a question of construction, and not one of law, we are now considering. And in this direction, the fact that no notice appears, and that there is no reference to it in any form, strongly tends to show that none in fact was given. Again, the prior orders tend to show that no final settlement of the ' estate was intended. On the 27th of May the administrator is ordered to give additional security in ten days; on June 14th, to turn over all papers, books and money to the heir by the 1st of July, And in compliance with this last order it is said, on July 9th, that he comes into court to make final settlement. As four weeks’ publication is required of a notice of final settlement, it is evident that the order on June 14th, to turn over the property to the heir by the 1st of July, did not contemplate a final settlement. Again, on the 24th of July the letters of the administrator are revoked — an order wholly inconsistent with the idea of a final settlement. And again, in the order of the succeeding day, the so-called order of final settlement, it is specifically found that the estate is not wholly administered, and the court can only make a final settlement when it appears that the estate “has been fully administered.” Gen. Stat. 461, §151. And in the bond executed before and approved by the probate judge on the same day, the heir bound himself to pay the debts. All these things together indicate to us that the court, although in its order it uses the words “final settlement,” was not intending to make the technical final settlement of the estate, but was intending to turn the estate over to the heir for him to settle. "Whether such proceedings were regular or not, it is unnecessary to decide. It is enough to show that such seems to have been their purpose and scope. Again, in this order of July 25th, it is found that certain property remains unadministered, and the administrator is ordered to turn it over to the heir. As we shall see, the major portion of the judgment in the case at bar is founded upon the dealings of the administrator with this property, so that it is to that extent rather in accord than in disregard of the settlement. Still again, while there may have been irregularity in the taking of the appeals, yet both the administrator and the heir appeared in the district court, and submitted to its jurisdiction. And by its decision a large amount allowed to the administrator by the probate court was disallowed, and thus the administrator is left several thousands of dollars in debt to the estate. It does not seem to us therefore, that there is enough in this so-called final settlement to bar this action, or compel a reversal of the judgment.
A second objection is, that the property belonged to the partnership of Brennan & Atkins, and that therefore the sureties on the bond of the administrator of the individual estate of Brennan were not responsible. The facts are these: Pri°r 1° his death, Brennan was a freighter, and owned a train. He sold a half-interest to Atkins for $9,800, and took five notes therefor, secured by chattel mortgage on the interest sold. These notes were unpaid except as to $89.31, and were good because so secured. After Newbanks became administrator, Atkins relinquished his interest in the train for the sum of $2,978.47 allowed him by the probate court, and the notes then became worthless. Newbanks, as administrator, inventoried the property as the property of the estate, had the exclusive control and possession of it until sold by him. In addition, the inventory shows more property than the jury find Atkins purchased any interest in; and indeed, there is nothing in it in any manner tending to show that Atkins had any interest in any of the property. So that it appears, that by means of this bond the administrator got possession of this property, treated it as the property of the estate, bought in the only outstanding interest in it, sold it as the property of the estate, used part of the proceeds in the payment of debts, and keeps the-balance in his pocket. More than that, the amount now in dispute, and not paid over by the administrator, is less than one-half the value of the notes rendered worthless by this-settlement with Atkins, and which unquestionably belonged to the individual estate, and were covered by the bond. We think it too late now for the sureties to interpose this objection.
Finally, it is objected that the sale under which the $2,000 was received was set aside by the probate court. Here the facts are these: Newbanks, on November 14th 1868, sold certain property to Musick, One of his sureties, for $6,293.40, receiving $2,000 in cash and the balance in a note. On May 23d 1869, the court made an order setting aside the sale, and in the order of July 25th 1869 it finds that the property so sold is in his possession, and orders him to turn it over to the heir. As a matter of fact, he did not have the possession of the property, but did have the note and the cash. The latter he still holds, and has never paid to anybody. The note he surrendered to Miles Brennan, appointed first administrator de bonis non, under a stipulation that he would not enforce against said Musick the order setting aside the sale, a similar stipulation being also signed by the heir. Suit was afterward brought on the note by the present defendant in error, as administrator de bonis non, judgment rendered thereon against the purchaser, and by him paid. We see nothing in this to discharge the administrator or his sureties. He made a sale, which in fact has never been disturbed. He surrendered to the purchaser certain property of the estate, which has never been returned to it, and which the purchaser still holds or enjoys the benefit of. He received for such property, so lost to the estate, cash and securities. The latter he surrendered to his successor, and by him they have been enforced against the purchaser, thus practically ratifying the sale. The cash still remains in his hands. It belongs to the estate, and should be transferred to its representative.
We have thus noticed the objections to the judgment, and are of the opinion that none should prevail. We have been much embarrassed in the examination of this record by the fact heretofore noticed, of the defects, omissions and irregularities in the record of the proceedings of the probate court. We are still in great doubt as to the scope and purpose of many of the orders and entries in that record, and can only say in conclusion, that we have not been satisfied that 'there is anything in the record which shows that the jury erred in finding the amount which they did to be due from the plaintiffs in error.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Are the provisions of the lien law of 1872 applicable in case of the erection by school districts of public school buildings? This is the principal question in this case, and must, we think, be answered in the affirmative. The language of the act is general and contains in itself no express or implied exceptions of school or other public buildings. “Any mechanic or other person who shall under contract with the owner of any tract or piece of land, his agent or trustee, * * * perform labor or furnish material for erecting, altering, or repairing any building, or the appurtenances of any building, or any erection or improvement, * * * shall have a lien * * * for the amount due to him for such labor or material.” Laws 1872, p. 294. This language could scarcely be made more comprehensive. Any mechanic, the owner of any tract, any building. Here is no suggestion of any excep tion. If public school buildings are exempted, it must be because of some other statute, or because they are in the very nature of things not subject to such liens. There is no express exemption by other statute. That upon which counsel rely is § 85, on p. 932 of the Gen. Stat., which provides in. effect that no execution shall issue upon judgments against school districts, but that' the district board shall levy a tax to pay such judgment, and in default thereof judgment may be recovered against the delinquent officers. Hence, as, by this; executions are forbidden, and the power to enforce a lien by levy and sale taken away, it is claimed that the lien itself cannot be created. This seems to us a non sequitur, and that full force is given to this statute if it is carried as far as its language goes and no farther; that is, if it operates to prevent the issue of process upon judgments, leaving all proceedings and rights prior thereto to be regulated and determined by other statutes. In this way both statutes are made operative. Contractor and subcontractor may secure liens. The latter may be protected against the irresponsibility or the rascality of the former, and the rights of all parties adjusted in accordance with the terms of the lien law. Liens may be foreclosed and placed in judgment, and then like other judgments are met by this statute which provides a tax instead of an execution as a means of enforcement. But it may be said that there is an incongruity in calling that right a specific lien, which is incapable of direct enforcement; and further, that the necessities of public business require that public buildings shall be held exempt from mechanics’ liens, or any risk, incident thereto, of their being lost to the public use. But many specific liens exist which cannot at all times be directly or otherwise enforced. A mortgage prior to its maturity, and a decree of foreclosure prior to the time when by its terms process may issue, are examples. So there are liens whose enforcement is suspended during the existence of the title by which defendants hold their property, as the lien in some states of judgments upon homestead property, a lien suspended or incapable of enforcement until the homestead- quality is removed. So here, there is nothing to prevent the existence of a lien upon a school building, suspended or incapable of direct enforcement until the public use of the building ceases, or the title passes from the district. Upon the other proposition, we find in Chicago v. Halsey, 25 Ill. 595, that a majority of the court held that independent of statute no judgment could be levied upon the public property of a city; and in Darlington v. The Mayor, &c., 31 N. Y. 164, that Ch. J. Denio, giving the opinion of the court, makes this distinction, holding that no property held by a city for public use can be seized on execution, but that any private property belonging to the city and not so held may be thus seized. In Brinkerhoff v. The Board of Education, 37 How. Pr. 520, a majority of the common pleas court held that a mechanic’s lien could not be had or enforced against a public schoolhouse. See also Philips on Mechanics’ Liens, 255, 610, 611; Wilson v. Comm’rs, 7 Watts & S. 197; Williams v. Controller, 18 Penn. St. 275; Foster v. Fowler, 60 Penn. St. 27; Poillon v. Mayor, &c., 47 N. Y. 666; Shattell v. Woodward, 17 Ind. 225. That where there is no statutory restriction, process may issue on judgments against municipal or quasi municipal corpo-' rations, see city of Independence v. Trouvalle, 15 Kas. 70. Whether upon such execution property held for public use can be taken, is a question as yet undecided in this state, and not necessary to be decided now. Eor in this case, no execution can issue. And the question is, whether taking away the process for enforcing a lien, takes away all rights to create the lien; and for reasons heretofore suggested, we think it does not. If the lien law applies in determining the representative rights and liabilities of owner, contractor, and subcontractor, then a payment to the contractor prior to the expiration of sixty days from the completion of the building does not release the owner from liability to the sub-contractor. Laws 1872, p. 295, § 2; Shellabarger v. Thayer, 15 Kas. 619.
The remaining question is, as to the effect of a judgment. The facts were presented in an agreed case under § 525 of the code of civil procedure, Gen. Stat. 733, and without pleadings. Among the facts, it appears that a judgment was rendered in a suit brought by this plaintiff against the contractor and the school district for the foreclosure of this lien, in which the court finds the amount due from the contractor to plaintiff, and renders a personal judgment therefor; also finds that the materials set out in the petition were furnished by plaintiff under a contract, and were used in the construction of the school building, and then the district is ordered to pay said plaintiff the amount of the judgment out of any moneys due the contractor, provided there is enough left to pay this and all other liens that may be established, if not, then pro rata. To this judgment no exception was taken, and no proceeding had to reverse or modify it. Now it is claimed that the effect of this is to discharge any so-called mechanics-lien, and gives to the plaintiff what is equivalent to a judgment against the school district as a garnishee, and that as a matter of fact the district did not and does not owe the contractor anything. There is much in the language of the judgment to sustain this claim of counsel, and it is doubtful whether it should' not be held to be well founded. But after considering the pleadings in connection with the judgment, and the facts agreed to in this case, we are constrained to overrule the claim. There is nothing in the pleadings in that case to warrant a mere garnishee proceeding and judgment. It is a suit to foreclose a mechanics-lien, and the issues ran to the fact of the debt and the existence of the lien. The judgment should be based upon the issues, and the forms of expression should be construed in reference thereto. It seems to us therefore, that without doing unreasonable violence to language it may be held that the court intended to and did adjudicate the validity of the lien, and expressed itself in the language used for the sake of avoiding any grant of process to enforce the lien, seemingly forbidden by the section of the statute heretofore referred to. Such a construction places the judgment in harmony with the issues and the pleadings, and the admitted facts in this case.
We think therefore that the plaintiff whs entitled to a judgment; and the case will be reversed and remanded, with instructions to render judgment against the defendant and in favor of the plaintiff for the amount of his lien, interest, and costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought by the defendant in error before a justice of the peace of Leavenworth county, upon the following bill of particulars:
{Court, and Title.) The plaintiff claims a judgment against the defendant for the sum of $124.46, for seven head of cattle killed by the engine and cars of said company, on the 7th of September 1874, in said county and state, to-wit:
Two Cows valued at $25.00 each,................................. $50.00
One Cow “ 22.50 22.50
“ Steer “ 22.50 22.50
“ Cow “ 16.00 16.00
“ Steer “ 15.00 15.00
“ Heifer “ 12.00 12.00
$138.00
Also for skinning six head and taking to market,............... 3.00
Total,.....................................................................$141.00
Cr. by cash,.............................................................. 16.54
Balance due,............................................................$124.46
For which amount the plaintiff asks that judgment be rendered against the defendant, and for costs of suit, together with thirty dollars 'for attorney’s fees.
Robert H. Taylor, Plaintiff.
The defendant did not appear, and judgment was entered for the plaintiff. The testimony was not preserved in any bill of exceptions. No findings appear, nothing to show what evidence was offered or what proceedings had, other than that upon such a bill of particulars at the time appointed for trial a judgment in favor of plaintiff was rendered for the amount claimed. A petition in error was filed in the district court to reverse this judgment, but that court affirmed it. And from that judgment of affirmance this proceeding in error is brought. And the single question presented is, whether that bill of particulars is sufficient to sustain the judgment. It is insisted by counsel for plaintiff in error that “it contains no averment either of negligence, or want of fence, and thus no case is stated either under the stock-killing law of 1874, (ch. 94, p. 143,) or on the ground of negligence.” It will be unnecessary to enter into any general consideration of pleadings in justices courts, and the rules by which they are to be governed. A simple re-statement of what has already been decided by this court will be sufficient.
I. While the statute reads, that the bill of particulars “must state, in a plain and direct manner, the facts constituting the cause of action,” (Gen. Stat. 791, §72,) yet no technical precision is demanded in those pleadings. On the contrary, the most liberal intendment will be given to them; and if every fact essential to the cause of action can be found in one, although stated in the most general way, or in the loosest and most indefinite manner, and no objection is raised to it at the trial, it will be held sufficient to sustain the judgment. Lobenstein v. McGraw, 11 Kas. 645; Kaub v. Mitchell, 12 Kas. 57; M. K. & T. Rly. Co. v. Brown, 14 Kas. 557.
II. Where there is an absolute omission to state a fact essential to the cause of action, but it appears from the record that the case was tried without objection, as though this fact was stated, and that the fact was duly proved and found, the omission will not be regarded in proceedings in error, but considered as waived. Such a case will be held to resemble that in which an entire pleading, as a reply, ought to be filed, but is not, and nevertheless the case is tried without objection, as though one were filed. The omission is considered as waived, and this court, on proceedings in error, regards the case as though the pleadings were actually in the record. Chapin v. Brown, ante, p. 142; K. P. Rly. Co. v. Yanz, 16 Kas. 583; Dresser v. Wood, 15 Kas. 362, 363; Bent v. Philbrick, 16 Kas. 190; Holden v. Clark, 16 Kas. 346; Russell v. Smith, 14 Kas. 366; Wilson v. Fuller, 9 Kas. 177; Walker v. Armstrong, 2 Kas. 198.
III. But where there is an absolute omission to state a fact essential to the cause of action, and such fact is neither deducible nor inferable from those which are stated, and there is nothing to indicate any proof, or finding, or admission of the fact, or waiver of this omission, this court is bound to regard the omission as error, and reverse a judgment founded upon such a defective bill of particulars. Hover v. Cockins, ante, p. 514. In this case, there is no allegation, even in the most general or indefinite manner, that the defendant’s road was not fenced, or that the injury resulted from negligence— nothing from which either of those facts could be inferred or deduced. Neither is there anything to show that any proof was offered upon these points, or any finding made thereon, or any waiver thereof by the defendant. The case stands before us just as though the matters alleged in the bill were all proved, and nothing more. It is in no better position than if the defendant had gone before the justice and admitted the allegations of the bill were 'true. And the question then comes, do these facts warrant a judgment against the defepdant ? (Hover v. Cockins, supra.) And this question, we are constrained to answer in the negative. It is of course a rule of pleading, that exceptions to a general rule of liability need not be negatived by the plaintiff, but are matters of defense to be alleged by the defendant. And it is therefore contended by defendant in error, that a bill of particulars, or other pleading, which shows that the action is brought against a railway company to recover the value of animals “killed by the engine and cars of said company,” shows a good cause of action, and that if the road is fenced, that is a fact to be alleged, as an exception to the general rule, by way of defense. But this rule has no application to a cause of action of the nature of the one which we are now considering. Here, the ground of recovery is, that the act as a whole imposed a duty upon the railroad company, the penalty for a neglect of which was payment for all stock killed. And it was necessary to show a breach of that duty before the company’s liability was disclosed. K. P. Rly. Co. v. Mower, 16 Kas. 573. This stock-law was taken substantially from that of Indiana, and this question has frequently been before the supreme court of that state; and its rulings have uniformly been in accord with these views. I. & C. Rld. Co. v. Wharton, 13 Ind. 509; I. & C. Rld. Co. v. Means, 14 Ind. 30; I. & C. Rld. Co. v. Sparr, 15 Ind. 440; I. & C. Rld. Co. v. Stallman, 16 Ind. 205; T. & W. Rld. Co. v. Lurch, 23 Ind. 10; T. & W. Rld. Co. v. Reed, 23 Ind. 101; P. C. & St. L. Rld. Co. v. Keller, 49 Ind. 211; T. W. & W. Rld. Co. v. Eidson, 51 Ind. 67.
The judgment will be reversed, and the case remanded to the district court with instructions to sustain the petition in error filed therein.
Valentine, J., concurring.
Horton, C. J., not sitting in the case. | [
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The opinion of the court was delivered by
Horton, C. J.:
The decisions of this court in the cases of The State v. Carmichael, 3 Kas, 102, and City of Olathe v. Adams, 15 Kas. 391, are decisive of the questions presented by the appellant. We repeat, what we have heretofore de cided, “We know of no authority in this court or in any other court, to set aside a verdict or finding of ‘not guilty/ in a criminal action. We think it is the universal opinion, both of bench and bar, that a verdict of ‘not guilty’ in a criminal action ends the case.” The counsel representing the appellant have not called our attention to any authorities tending to show that the verdict and judgment rendered in this case are not conclusive.
The judgment of the court below must therefore be affirmed.
All the Justices concurring.
[*Since this opinion was filed, counsel for The State has called the reporter’s attention to the record and to the brief as filed, to show that it was not supposed or claimed by him, nor on the part of The Slate, that the defendant could be again tried, even if the supreme court should hold that the trial court erred in ruling out the testimony. Counsel refers to §§283 and 288 of the criminal code, and suggests that the record in this case was prepared expressly by the counsel on both sides, and by the trial court, to present to the supreme court for review the three questions reserved, (see statement of •case, in the text, supra,) “ that such questions might be settled, but without a thought that, where there was a verdict and judgment of acquittal, the defendant could be again tried for the same offense.” The two sections referred to by counsel are as follows:
“Sec. 283. Appeals to the supreme court may be taken by the state in the following cases, and no other: First, Upon a judgment for the defendant, on quashing or setting aside an indictment or information. Second, Upon an order of the court arresting the judgment. Third, Upon a question reserved by the stale.
“Sec. 288. In case of an appeal from a question reserved on the part of the state, it is not necessary for the clerk of the court below to certify, in the transcript, any part of the proceedings and record, except the bill of exceptions and the judgment of acquittal.” (Gen. Stat. pp.865, 866.)
Query: Is not the fault in the statute? and did not the supreme court decide the only question properly before it? In other words, does not the statute, in the third clause of §283, undertake to do what the legislature had no power to do—that is, to give the state an appeal where the defendant has upon trial been found not guilty, and acquitted? Counsel for the state says he does not contend that Crosby could be tried again—he does not deny “that the verdict and judgment are conclusive.” What question, then— conceding (what it would seem will scarcely be controverted) that the trial court erred in its second and third rulings—had the supreme court before them to decide? The judgment of acquittal being conclusive, (once in jeopardy, §10 of bill of rights,) the defendant, being acquitted, being discharged without day, has no further interest in the case, nor in any question raised and passed upon by the trial court, whether such court decided correctly, or not, or whether the state “reserves” such question, or not. So far as the defendant is concerned, the judgment being final as to him, there is nothing from which the state can appeal. The defendant is no longer a party to any controverted question. He has nothing to settle, by an appeal by the state—no right or interest to-be affected by any settlement or decision so made. He is not a necessary or proper party, either as appellee, or as defendant in error. How then can “reserved questions” in such cases be brought here as upon “ appeal by the state?” So much of the- statute as attempts to authorize such appeal, must be void. The supposed “appeal” is only an ear parte proceeding, (original in its nature,) by which the state in effect presents to the supreme court, not an action, or cause—not a controversy between the state and another party—but original questions. Calling this proceeding an “appeal,” does not make it so. And as the supreme court, with respect to such questions, has, not original, but appellate jurisdiction only, (const., art. 3, § 3,) it would seem that it has no power or authority to review questions presented as were the questions in this case, where the record shows a final judgment of acquittal. Of course, appeals may be taken by the-state under the first and second clauses of said §283.—Reporter.] | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by John Brady and David F. Easton against the Kansas Pacific Railway Company for alleged negligence in permitting fire to escape from one of the company’s locomotive engines, whereby damage was done to certain property belonging to the plaintiffs. The evidence shows that fire did so escape, and in consequence thereof a hay-stack and a fence around it, both belonging to the plaintiffs, were consumed. The evidence also shows that said engine from which said fire escaped was one of the best of engines, that it was skillfully constructed, in good condition, and was provided with the best of appliances and all proper appliances for the prevention of the escape of fire. The best and safest kind of fuel was used, and the engine was managed by a competent and skillful engineer. The fireman also seems to have been competent and skillful, and to have done his duty. But it is claimed that on this particular occasion the engineer was careless and negligent, and regardless of his duty. Whether this is so or not, or rather whether there is sufficient evidence ™ case to show prima facie that the engineer was negligent, is the first question presented in cage_ evidence tending to show that the engineer was negligent is as. follows: At the time said fire occurred, the weather was dry and windy. A very strong wind was blowing from the south. The plaintiffs’ hay-stack was situated about one and one-half or two miles north of the railway. The intervening space was an open prairie, covered with dry grass. The engine from.which the fire escaped was one of the best, and the best of fuel was furnished with which to operate it. Other engines passed that same place under similar circumstances without producing fires; yet this particular engine produced three or four different fires, and perhaps a greater number, and the engineer who had it in charge did not even know that it produced a single fire. Taking this whole evidence together, and we think it is sufficient to make out a prima fade case of negligence ■against the engineer. That the engineer should allow his engine to produce so many fires, amidst surrounding eircum-stances calling for the greatest vigilance on his part to prevent the escape of fife, when a single spark escaping might produce a fire that would spread all over the country and do incalculable damage, and he at the same time not knowing of a single^fire being produced, would seem to indicate very strongly that he was not exercising the greatest vigilance in the performance of his duties. We have given only one side of the evidence with reference to the negligence of the engineer. The evidence tending to show that he was not negli gent we have not given, for it was all parol testimony, such as properly goes to the jury for their consideration, and this court does not weigh conflicting parol testimony for the purpose of reversing judgments. This court reverses judgments for insufficiency in the evidence only where the evidence most favorable to the findings made in the court below fails to prove prima fade some material fact necessary to be found in the case in order to uphold such findings, or where such prima fade proof has been rebutted and overcome by that kind of evidence which of itself is conclusive, and whose weight and value belongs to the court to- consider, such as written instruments, documents, and record evidence. The rule would seem to be, that where the verdict of a jury is not sustained by sufficient evidence to make out a prima fade case in favor of such verdict, the judgment founded thereon should in all cases be reversed, provided of .course that the question is properly presented to the supreme court. But where the verdict is sustained by evidence sufficient to make out a prima fade case, and all the evidence against the verdict is merely in parol, the judgment founded upon such verdict should not be reversed unless some ground for reversal is found other than merely that the preponderance of the evidence is against the verdict. The case of the A. T. & S. F. Rld. Co. v. Stanford, 12 Kas. 369, is a good illustration of these propositions. In that case the evidence most favorable to the verdict made out a prima fade case in favor of all the material findings of the verdict, but the preponderance of the evidence was clearly against some of the findings, and the judgment in that case was sustained. (See also, K. P. Rly. Co. v. Montelle, 10 Kas. 126, 127; K. P. Rly. Co. v. Kunhel, ante, pp. 146, 168.)
The only other question in this case is, whether the plaintiffs below were guilty of contributory negligence. Or rather, the only other question is, whether there was any evidence te:Qdingto show that the plaintiffs were guilty of contributory negligence; for if there was'any such evidence, then the court below erred in refusing to submit the question of contributory negligence on the part of the plaintiffs to the jury. The evidence claimed as tending to show contributory negligence on the part of the plaintiffs is substantially as follows: The plaintiffs stacked their hay within a mile-and-a-half or two miles of the railroad, on an open prairie which extended all the way from the hay-stack to the railroad, and which was covered with dry grass. The plaintiffs put a fence around the stack, which was also burned. Every season nearly all the country in that vicinity is burned over. The plaintiffs knew that their property was in danger from fire, and that it ought to be protected. They therefore plowed partially around it, but did not plow all around it, and the fire was communicated to the hay-stack over the ground which was not plowed. The plaintiff Easton testifies among other things as follows:
“The hay and fence were burned on the afternoon of the 6th of November 1874, about 3 or 4 o’clock. Witness (Easton) sent his servants to plow around it, but whether they plowed all around it he does not know. There were grass and weeds around the stack. There ought to have been furrows plowed, and a rod between them burnt out, to prevent the fire from communicating. The wind was blowing very hard the day of the fire,” etc.
William Everett testifies among other things as follows:
“It is a common thing for the entire country to be burned over the entire season. Not entirely so this. The growth was not so luxuriant, owing to the drouth. Generally the whole country is burned over every season. I went to the other stacks, [at the time of the fire;] did not go to the plaintiffs’; supposed it was protected.”
John A. Storm testifies among other things as follows:
“He (witness) visited the place where the stack of hay of the plaintiffs was burned. It was plowed partly around, but not all the way, and the fire communicated to the stack over that part of the ground not plowed. Where it had been plowed, which was part on the south side and on the east, the fire had not burned.”
There is nothing in the record that shows when the plaintiff Easton sent his servants to plow around said hay-stack. If it was after the fire escaped from the defendant’s engine, and before it reached the plaintiff’s hay-stack, the question of whether the plaintiffs were not guilty of negligence in not plowing all around their hay-stack, should beyond all doubt have been submitted to the jury. The court could not say under such circumstances that as a matter of law the plaintiffs were not guilty of negligence. The court could have come nearer saying that under such circumstances the failure of the plaintiffs to plow all around their stack was, per se, and as a matter of law, negligence. If the plaintiffs even knew of the escape of the fire from the engine before it reached their property, it was their duty to use all reasonable means to avoid the destruction of their property; and a failure to do so would be negligence.
But suppose the plaintiffs did not know anything about said fire until their property had been completely destroyed: then, would it be so utterly impossible under such circumstances for the plaintiffs to be guilty of any negligence, as between themselves and the railway company, that the court below could say as a matter of law that the plaintiffs were not guilty of any negligence ? Now it has been laid down as .a general rule of law, that no one is bound to anticipate the negligence of others, or to act as though others might be negligent. (Kellogg v. C. & N. W. Rly. Co., 26 Wis. 223.) But it has also been held that this rule of law has its limitations and its exceptions. (Kesee v. C. & N. W. Rly. Co., 30 Iowa, 78, 83.) The rule stated in general terms would seem to be, that all persons must take the risk of accidents, but not of the negligence of others. (As to accidental burnings, see K. P. Rly. Co. v. Putts, 7 Kas. 308; M. K. & T. Rly. Co. v. Davidson, 14 Kas. 349.) But why should not all persons be required to prepare for a certain amount of anticipated negligence ? All prudent persons do so; and many decisions of courts seem to have been made upon the theory that all persons are required to do so. All persons are sometimes negligent. Even the most prudent are sometimes lax in the amount of care and vigilance which they ought to exercise. All men know this. Then why should not all men be required to anticipate that average amount of negligence which must in the very nature of things be expected to transpire? All men know that fire escapes from railway engines, and that it often escapes from negligence as well as from accident. And so long as human beings are imperfect, all men know that fire will continue to escape from engines from negligence as well as from accident. In the very nature of things this must be so; and fires must always be expected to originate from such a source. Then why should not all men in the vicinity of railroads be required to make some preparation for negligent fires, as well as for accidental fires ? Why should they not be required to make such reasonable preparation to avoid loss from fires, as reasonably prudent men in the-same vicinity usually and ordinarily do? Would any less degree of care and diligence than this, be regarded as reasonable care and diligence? Would any less degree of care and diligence than this be as much care and diligence as a reasonably prudent man would usually and ordinarily exercise ? Do not all reasonably prudent men in the transaction of their own affairs make some preparation for the negligence of others, as well as for accidents? If so, then the general proposition that no man is bound to anticipate the negligence of others, or to make any preparation therefor, would seem to have its limitations or exceptions; for we take it that all men are bound to exercise that degree of diligence to prevent injuries to his own property which a reasonably prudent man would exercise under like circumstances. But let us view this question in another aspect. Permitting fire to escape from a railway engine, whether accidentally or intentionally, is never per se negligence. And whether it is negligence in any particular case, always depends upon the particular circumstances of such particular case. Where the fire could do no possible injury to any person or thing, the permitting of the same to escape could never be considered as negligence. Take the present case as an illustration of these proposi tions: If on the day that said fire escaped, rain had been descending in copious showers, making everything wet and invincible to fire; or, if all the grass in that vicinity had been green, or had been burned off the day before; or if the ground between the stack and the railway track had been freshly plowed, no one would think of calling the acts or omissions of the defendant in permitting the fire to escape, negligence. Even if a strip of the land around said stack had been freshly burned, or freshly plowed, no one would think of imputing negligence to the railway company as against the plaintiffs, for by no possible contingency could the escape of the fire in such a case injure the plaintiffs. Neither could negligence be imputed to the defendants, if the plaintiffs had stacked their hay on safer ground. The plaintiffs were, not bound to stack their hay where they did stack it, but evidently they could have found some safer ground on which to stack it if they had so chosen. Hence it will be seen that if the defendant was negligent at all as against the plaintiffs, it was about as much- because of the acts and omissions of the plaintiffs as because of the acts and omissions of the defendant. If the defendant was negligent at all as against the plaintiffs, it was really as much because said hay was stacked in a dangerous place, and because dry grass was allowed to intervene all the way from the stack to the railway track, as because said fire was permitted to escape. Now as the burning of said hay was the result of the acts and omissions of both the plaintiffs and the defendant, it would seem that the acts and omissions of both parties should have been submitted to the jury. Both parties may have been negligent, and the acts and omissions of both should have been subject to the scrutiny of the jury. But it is claimed that the plaintiffs could not under any circumstances be considered negligent. It is claimed that they had a right to stack their hay as they did stack it, in a dangerous place, with dry grass, all around it, and without taking any precautions for its protection. And this is claimed upon the theory that every man has a right to use his own property as he pleases without reference to the great inconvenience he may thereby impose upon others. Is this theory, or rather the plaintiffs’ application thereof, correct ? Suppose that the plaintiffs had owned the land from the railway track to their hay-stack, and that they had the entire possession and control of such land: and suppose that said land had been entirely free from all combustible material, but that the plaintiffs in the exercise of their right to use their own property in their own way had strewn gunpowder along the railway track and from the railway track to their hay-stack: and then suppose that the defendant had negligently, but not willfully or intentionally, permitted fire to escape from one of its engines, and the gunpowder thereby becoming ignited had almost instantaneously communicated the fire to the plaintiffs’ hay-stack, and,consumed it: could the plaintiff recover from the railway company for such loss ? In such a case the plaintiffs would simply have used their own land, their own hay, and their own gunpowder, in their own way, and without molesting any one else, or meddling with any other person’s property. Then why could not they recover ? Will it be said that they voluntarily chose to suffer the loss? Will it be said that by allowing them to recover it would allow them to so use their own property as to injure the general welfare of others? These would seem to be at least plausible reasons why they should not recover. It is said that the maxim, sic utere tuo ut alienum non Icedas, has no application in such a case. But if it has not, then some similar maxim should have. Why should any person be allowed to .invite the destruction of his own property by his own negligence, so that he might by recovering for the loss thereof lessen the estate of another to that extent ? Why should any person be allowed to so use his own property that in the natural course of things he would most likely injure the estate of another to the extent of the value of such property? Or, why should he have it within his power to so use his own property as to make it so hazardous for others to use theirs that such others must necessarily abandon the use of theirs? The fact is, that all persons in the use of their own property, or in the transaction of their own affairs, should use reasonable diligence to avoid injuries to any property, whether such property belongs to themselves or to others; and generally, in such cases all persons should exercise that degree of diligence' which an ordinarily prudent man would exercise under like circumstances were all the property his own. Generally all persons have a right to expect that this amount of diligence will be exercised. In the present case, the plaintiffs had a right to expect that the defendant would exercise reasonable diligence to prevent the escape of fire; and the defendant had a right to expect that the plaintiffs would exercise reasonable diligence to avoid injuries from fire. Neither was bound to suppose that the other would be negligent in this respect. Now it is conceded that the defendant was negligent; but were not the plaintiffs also negligent ? If they were, then they cannot recover. They cannot recover for the destruction of property which would not have been destroyed except for their own negligence. If reasonable diligence required that the plaintiffs should have plowed around said stack, then the defendant had a right to. suppose that the plaintiffs had done so, and that the stack was protected to that extent; and in such a case the defendant is not liable for the loss of the stack. The defendant is liable in such a case for only so much of the damages which it causes by reason of its negligence as could have not been avoided by the plaintiffs by the exercise of reasonable diligence on their part. If the plaintiffs were in fact negligent, then the negligence of the defendant was in fact founded upon the negligence of the plaintiffs, and was caused thereby. If the plaintiffs in such case had not been negligent in allowing their stack to be exposed, the defendant could not have been negligent as against the plaintiffs in permitting the fire to escape. The exposure of the stack, is what made the escape of the fire negligence. If the stack had been protected, the acts and omissions of the defendant would have been inno cent and harmless. The plaintiffs themselves, by their own acts and omissions, made the acts and omissions of the defendant negligence; and except for their own negligence in not protecting their stack, its loss would never have occurred. Now can they recover because of the negligence of the defendant, when they themselves were the cause of such negligence? Whether the plaintiffs were in- fact guilty of any negligence, we do not know. There was evidence tending to show that they were negligent; and the question of whether they were or not, should have been submitted to the jury. But it was not submitted to the jury, and in this we think the court below erred. The plaintiffs should have exercised that degree of diligence to avoid injuries to their own property by fire escaping from the defendant’s engines, which an ordinarily prudent man would have exercised under like circumstances. As sustaining our view of the question, we would refer to the following cases: Kesee v. C. & N. W. Rly. Co., 30 Iowa, 78; Garret v. C. & N. W. Rly. Co., 36 Iowa, 121; O. & M. Rld. Co. v. Shanfelt, 47 Ill. 497, 505; Ill. Cent. Rld. Co. v. Munn, 51 Ill. 78; C. & N. Rly. Co. v. Simonson, 54 Ill. 504; Coates v. M. K. & T. Rly. Co., 61 Mo. 38; St. J. & D. C. Rld. Co. v. Chase, 11 Kas. 47, 56. See also, upon this question, the following cases: Fero v. B. & S. L. Rld. Co., 22 N. Y. 209; Cook v. Champlain Trans. Co., 1 Denio, 91; Kellogg v. C. & N. W. Rly. Co., 26 Wis. 223; Salmon v. D. L. & W. Rld. Co., 38 N. J. Law, 5. The last-mentioned cases present the other side of the question, so far as the other side has been presented in any case.'
The judgment of the court .below will be reversed, and cause remanded for a new trial.
Brewer, J., concurring.
Horton, C. J., not sitting in the case. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action for damages claimed to have resulted from the negligence of the defendant below, (plaintiff in error,) in transporting certain cattle of the plaintiffs over the defendant’s railroad from Ogden east to State Line station. The deféndant denied the negligence and damage, and also set forth in its answer that the cattle were transported under a certain special contract, and that no notice of any loss or damage was ever given to the defendant as provided for in said special contract, and therefore that even if there was any negligence, loss, or damage, the defendant is absolved from paying anything therefor. Said special contract as given in the defendant’s answer reads as follows:
“LIVE-STOCK CONTRACT.
Nos. of Cars, \ /
“ Gr. F. O. No. 44, KANSAS PACIFIC RAILWAY,
“Ogden Station, June 18th, 1870.
“Received of Reynolds, Ferrell & Seymour, two cars of cattle, to be delivered at State Line station, at special rates, being forty dollars per car-load, each car containing eighteen animals, more or less. In consideration of which, and for other valuable considerations, it is hereby mutually agreed, that said company shall not be liable for loss by animals injuring themselves or each other, or by jumping from the cars, delay of trains, or other damage said property may sustain, except such as may result from the acstual negligence of the company or its agents. The owners or persons in charge of stock are passed free on the train accompanying the stock, at their own personal risk, in consideration of the fact that they are to water, feed and take care of the stock at their own expense and risk, and are to assist in unloading the stock at destination, and at feeding or transfer points. It is further agreed that the company shall not, in any event, be liable for any loss, damage or detention caused by military authority, or by rebellion, insurrection or riot, or for stock dying on the train for any cause. Agents are not permitted to ship stock in box cars under any circumstances, without the owner or his agents consent thereto in writing, to be indorsed on this contract, and signed by the agent or owner shipping, and then they are to be entirely at the risk of the owner. The com pany is not to be held responsible for the loss of stock by doors getting closed and stock smothering. No claim for loss or damage on live stock will be allowed, unless the same is made in writing, before or at the time the stock is unloaded. The evidence that the shipper, after full understanding thereof, assents to all the provisions of the foregoing contract, is ■ his signature hereto. The railway company does not undertake to transmit live stock in any given time.
“Theo. Weichselbaum, Age,nt for the Company.
“Reynolds, Ferrell & Seymour, Shippers.
“Witness — Ben. Wossbaum.”
The plaintiffs replied, that said special contract was executed on their part without any consideration; and therefore they claim that the same, so far as it differs from the general contract entered into in such cases between shipper and common carrier, is not binding upon them; and therefore they claim that they were not bound to give said notice of loss and damage.
The evidence shows among other things as follows: The defendant company introduced evidence showing that it had, at the time said cattle were shipped, regular printed tariff rates for the transportation of cattle; that the rate for carrying cattle from Ogden to State Line was $92 per car-load, and that a copy of said tariff rates was posted up in the office of Theo. Weichselbaum, the agent of the railway company at Ogden. But on the contrary, R. B. Gemmell, the general freight agent of the company at the time these cattle'were shipped, to-wit, June 18th 1870, and a witness for the company, testified that “In June 1870, the agent at Ogden had no authority to ship at other than special rates, under such a contract as above referred to.” And Robert Reynolds, one of the plaintiffs, and a witness for the plaintiffs, testified: “At the time I ordered cars, no contract was entered into — nothing said as to terms. * * * Theo.Weichselbaum said nobody could ship unless they signed that contract; said there was no other rates. ' I got the cattle on .the cars without saying anything to Weichselbaum about any contract, and believed in.law I could force him to take them without any. That is one reason why I objected to signing the contract. He had offered to read the contract. The option was offered us to ship under this contract at this rate, or to unload.” E. T. Ferrell, one of the plaintiffs, and a witness for the plaintiffs, testified: “Theo. Weichselbaum said that he would turn out the cattle unless we signed the contract. Eeynolds said he thought he could make the company take the cattle without signing any contract. I passed free upon the train with the cattle.” While the cattle were being transported from Ogden to State Line an accident occurred at Topeka which delayed the train about twelve hours, and damage resulted to the cattle from their prolonged detention in the railroad cars on a very warm and calm day without food or water. But the plaintiff gave no written notice of any claim for loss or damage, as required by said special contract. They gave a verbal notice however. Now we suppose about the only question worth considering in this case is, whether the said special contract was executed on the part of the plaintiffs with or without any sufficient consideration therefor. If it were true that the regular rate for carrying cattle by the railway company from Ogden to State Line, with the extended responsibility of a common carrier, was $92 per car-load, and that $40 per car load for the same service was a special and reduced rate because of a limited and diminished responsibility, and if the plaintiffs had been allowed to exercise their choice as to which of the two ways they would have their cattle carried, and had then chosen the latter, and had then voluntarily executed said special contract, such special contract would under such circumstances be valid and binding, and founded upon a sufficient consideration, and its requirements that the plaintiffs should give said written notice of loss and damage would be reasonable, and could not be ignored with impunity. (Goggin v. K. P. Rly. Co., 12 Kas. 416.) The difference in such a case between the higher rate required by the railway company as a common carrier and the reduced rate accepted by the company under a restricted responsibility, would be a sufficient consideration going to the plaintiffs for the execu tion of the said special contract by them. But it is not true, according to the evidence, that the regular rate for carrying cattle from Ogden to State Line was $92 per car-load. The regular rate was $40 per car-load, and no more. There is not the slightest evidence, except merely said printed rates, that the company ever carried or offered to carry any cattle at any other rate than $40 per car-load j and there was abundance of evidence showing that in fact they had no other rate. Neither did the company give the plaintiffs any option as between rates, or as between terms of transportation. The only option that the company offered the plaintiffs was, to sign said special contract or have their cattle unloaded. It will be remembered that nothing was said about any special contract until the cattle were all loaded in the cars. It was evidently the intention of the plaintiffs to ship their cattle without any special contract, they paying full rates, and the company being liable as common- carriers. But after they had loaded their cattle in the cars, then the agent of the company demanded of them that they sign said contract or have their cattle unloaded. This was not right. A railroad company has no right to refuse to carry cattle, and it has no right to refuse to carry them under the full responsibilities of a common carrier. And in all cases, where cattle are carried by a railroad company, each party (the carrier and the shipper) has a right to demand that they be carried under just such terms and conditions, and with just such responsibilities, as are established by law for the transportation of such property by -common carriers; and these terms, conditions, and responsibilities, can be varied or altered only by the mutual consent or agreement of both parties. Therefore, under all the circumstances of this case we think the said special contract, so far as it attempted or attempts to restrict the liability of the railway company, or to impose additional burdens upon the plaintiffs as conditions precedent to a recovery for damages resulting from the negligence of the railway company, was and is unfair, unjust, without consideration, and void. It is unnecessary to discuss any of the other questions raised in this case.
The judgment of the court below must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendants were convicted of an assault and battery before a justice of the peace, and appealed therefrom to the district court. The justice, instead of certifying up the original complaint, sent to the district court a certified copy. When the case was called for trial in the district court, the defendants in all proper ways objected to any trial upon such copy, but the court overruled their objections, and the case was tried upon a copy of the complaint certified by the justice to be a true copy. In this we think the court erred, and that the error was a vital one. The statute requires the justice on appeal of a criminal case to “make return of the proceedings had before him,” and to “certify the complaint and warrant, together with all recognizances,” to the district court, and that court is to “hear and determine any cause brought by appeal from a justice of the peace upon the original complaint, unless such complaint shall be found insufficient and defective, in which event the court at any stage of the proceedings shall order a new complaint to be filed therein.” (Gen. Stat., pp. 882, 883, §§21, 22.) There is nowhere in the statute any authority for putting a party upon trial upon merely a copy so certified. It is a proceeding without sanction of law, and cannot be sustained. And we think it would be a dangerous precedent; for while a copy may be accurate, yet there is always more or less of doubt thereof. And in criminal cases especially, as far as possible, all doubts should be eliminated, and'it be certain that the party is tried upon exactly the charge preferred against him. In respect to indictments, it is true, a trial may sometimes be had upon a copy. But see how carefully the law has provided for the accuracy of the copy. It requires that every indictment shall be recorded by the clerk at the term at which it is found, in a book to be kept for that purpose; that the judge shall compare this record with the original indictment, and certify to the correctness of it; and then, in case of the loss or destruction of the original, the case can be tried on a copy from this record. (Gen. Stat. 839, §117.) As after the discharge of a grand jury, it would be often impossible to reconvene the same jurors, and as the indictment is the record of the determination of a body which, once discharged, has ceased to exist, and a determination which is the foundation of further and important judicial proceedings, it seemed necessary to guard against the failure of those proceedings through the loss or destruction of that record. On the other hand, when the prosecution is by information, which is in the nature of a mere complaint under oath by the prosecuting officer, in case of its loss or destruction he is to file another information, and the trial proceeds upon this as though it was the original and only charge. (Gen. Stat., p. 839, § 118.) Now a complaint before a justice of the peace is more in the nature of an information than an indictment, and in case of its loss or destruction a new complaint should be filed, and trial had upon that. (Gen. Stat. 883, § 22.) Nor do we think the defendants have waived their right to object to being tried upon this copy, from the fact that they had twice at previous terms gone to trial, in each case resulting in a hung jury, upon the copy without objection. They objected at the commencement of this trial, and their previous failure to object was not tantamount to a consent.
We think therefore the judgment 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
Robb, J.:
This is an appeal in a criminal proceeding wherein defendant was charged with violation of G. S. 1949, 21-554, known as the “worthless check” act.
In State v. Bontz, 192, Kan. 158, 386 P. 2d 201, this day decided, the same defendant was charged with the same crime although the payee of the check and the date and amount thereof are all different. However, due to the similarity of the questions raised in the two cases, the rulings made in No. 43,504 are controlling here and they need not be repeated.
Judgment affirmed.
Price, J., not participating. | [
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