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The opinion of the court was delivered by
Dawson, J.;
This is an appeal from a judgment against an ancillary administrator and in favor of attaching creditors.
It appears that the late J. C. Wilhoit, who resided many years in Manhattan, Riley county, and had some real and personal property thereabout, moved to Kansas City, Mo., in 1920, and died testate in that city in 1923.
His widow, Ethel J. Wilhoit, was named as sole devisee and legatee under the will and was also named as executrix. She probated the will in Missouri, and later ancillary administration of the will was undertaken in Riley county, and the appellant, S. A. Bardwell, was appointed and qualified as ancillary administrator with the will annexed.
On February 23,1924, the Bank of Topeka began its action against Ethel J. Wilhoit, as executrix and as an individual. The cause of action was founded on an unsecured promissory note of Wilhoit, the deceased. At the same time, the plaintiff bank filed an affidavit of attachment on the ground that defendant was a nonresident, and a writ of attachment was issued and served on February 26, 1924, thereby subjecting the real estate in Riley county to such attachment.
On April 21,1924, H. J. Allen commenced a similar action against the executrix and Ethel J. Wilhoit individually. He also procured the issuance and service of a writ of attachment and attached the Riley county property.
The Bank of Topeka proved its claim in Missouri against the estate of Wilhoit, and on June 25,1924, while its action was pending in Kansas, that claim was allowed by the Missouri probate court, as a general unsecured claim of the fifth class.
Allen filed his claim in the Missouri probate court but later withdrew it.
S. A. Bardwell, the Kansas ancillary administrator, was made a party defendant in this action at his request, and laid claim to the Riley county real estate for the benefit of the general creditors, as the testator’s estate was insolvent and the personal property was altogether insufficient to pay miscellaneous valid claims against it.
The administrator claimed that his right to the property was superior to the attachment liens.
Prior to the death of Wilhoit, the Citizens State Bank of Manhattan had become insolvent. Its receiver had begun an action against Wilhoit on his statutory liability as a stockholder. Judgment was obtained by the receiver after Wilhoit’s death, and the receiver garnished a sum of money due from one Green as a balance of the purchase price of some land sold by Wilhoit to Green.
The widow, Ethel J. Wilhoit, claimed the sum due from Green as her individual property and likewise claimed one small tract of land subjected to the attachments.
Counsel for appellant explain the case and its outcome thus:
“The court will observe that there were five claims in controversy and the lawsuit was a five-cornered one and with a firm of lawyers on each comer, a most enjoyable lawsuit resulted. . . .
“1. The receiver of the failed bank got nothing.
“2. The widow, Ethel J. Wilhoit, individually, got the money on the Green contract and also one piece of property.
“3. The remaining two tracts of real estate . . . were found to have been owned by the doctor [Wilhoit] at the time of his death.
“4. The Bank of Topeka got a judgment against Mrs. Ethel J. Wilhoit, as executrix of the estate of J. C. Wilhoit for the sum of $3,058.33, and its attachment lien was held to be valid, subsisting and binding, and the court held that real estate was subject to be sold to satisfy its first lien, secured by the attachment.
“5. H. J. Allen secured a judgment for $6,046.53 against the executrix of the estate, and his attachment lien was held to be valid, subsisting and binding, but second to the hen of the Bank of Topeka, and the court held that the real estate was subject to be sold to satisfy the lien secured by the attachment.
“6. The administrator with the will annexed, claiming on behalf of the general creditors, got nothing.”
The judgment was acquiesced in so far as the widow is concerned, but the administrator appeals from so much of the judgment as favored the attaching creditors.
While appellant recognizes the force of existing statutes and our decisions to the general effect that a nonresident sole devisee or nonresident executrix may properly be sued and property of a nonresident decedent be attached (R. S. 22-1308, 60-901, 60-921, 60-928; Cady v. Bard, 21 Kan. 667; Donifelser v. Heyl, 7 Kan. App. 606, 52 Pac. 268, affirmed in 59 Kan. 779, 54 Pac. 1059; Manley v. Park, 62 Kan. 553, 64 Pac. 28; Manley v. Mayer, 68 Kan. 377, 75 Pac. 550; Dewey v. Barnhouse, 75 Kan. 214, 88 Pac. 877) he argues that when the decedent’s estate is insolvent the remedy of attachment otherwise available to diligent creditors cannot be invoked.
The remedial procedure accorded to creditors for the collection of their due is simply whatever the legislature has prescribed. Appellant cities the rule in bankruptcy cases, whereby preferences, liens, and other claims of right to priority less than four months old are reduced to a common level. But that rule is one of express legislative command. (U. S. Comp. Stats. 1918, §§ 9644, 9651.) The general tenor of our statute concerning attachments is quite to the contrary. Pertinent paragraphs read:
“60-921. From the time of the issuing of the order of attachment, the court shall be deemed to have acquired jurisdiction and to have control of all subsequent proceedings under the attachment; and if after the issuing of the order the defendant .(being a person) should die, or a corporation and its charter should expire by limitation, forfeiture or otherwise, the proceedings shall be carried on; but in all such cases, other than where the defendant was a foreign corporation, his legal representatives shall be made parties to the action.”
“60-929. Different attachments of the same property may be made by the same officer and one inventory and appraisement shall be sufficient, and it shall not be necessary to return the same with more than one order.”
Appellant cites some language in the text of Achenbach v. Coal Co., 2 Kan. App. 357, 42 Pac. 734, which tends to support his con tention. But as was said in Mendenhall v. Burnette, 58 Kan. 355, 382, 49 Pac. 93, that language “must be considered as applying to the case there under consideration.” Moreover, the dictum in Achenbach v. Coal Co., supra, on which appellant relies was based upon a Pennsylvania decision which could never have been announced if the pertinent Pennsylvania statutes covering attachments of nonresident decedents’ estates had been like our own. And furthermore, these plaintiffs instituted these proceedings in attachment before the ancillary probate proceedings were commenced in Riley county. The appellant administrator got into these cases quite properly, to be sure; but h.e did so after they were regularly begun, and his getting into the litigation could not alter the status of plaintiffs’ attachments which had theretofore become effective.
There is no error in the record, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The proceeding was one by a civil service employee in the health department of the city of Kansas City, to recover from the city salary for a period during which he was excluded from employment by wrongful removal. The court held he' could not recover that part of the salary which had been paid to employees appointed in his place according to civil service rules, and the court offset against the unexpended portion of the salary net earnings of plaintiff during the period of exclusion. The result was, judgment was rendered for defendants. Plaintiff appeals.
The proceeding was a sequel to the decision of this court in the case of Bassler v. Gordon, 119 Kan. 40, 237 Pac. 907, which had the effect of procuring plaintiff’s reinstatement. The nature of plaintiff’s position, whether officer or employee, the reason .assigned by the mayor and commissioners for his removal, the legal insufficiency of that reason, and the consequent invalidity of plaintiff’s, exclusion from employment, were discussed in the opinion. For the present purposes it may be conceded, without so deciding, that the mayor and commissioners acted arbitrarily. The removal was a nullity in law, and the question here is reparation.
In passing the resolution discontinuing employment of plaintiff and in enforcing compliance with the resolution, the mayor and commissioners acted in a governmental capacity. No private proprietary interest of the city was involved. The position was created to promote the public welfare, and the incumbent was required to work under, report to, and be under the direction of the commissioner of health and sanitation. Although the mayor and commissioners abused their power in making the removal, the principle of respondeat superior does not apply, and the city is not liable in damages for their misfeasance. (Edson v. Olathe, 82 Kan. 4, 107 Pac. 539.) Recovery is necessarily predicated on breach of the implied contract of the city to pay the employee the compensation assigned by ordinance to the position. (State, ex rel., v. Hannon, Mayor, 38 Kan. 593, 17 Pac. 185.)
During a portion of the period plaintiff was wrongfully excluded from employment, dairy inspectors were regularly appointed according to civil service requirements, discharged the duties of the position, and received the salary. Such appointments gave color of title to the position, and the appointees sustained a relation to proprietors of dairies, the commissioner of health and sanitation, the fiscal officers of the city, and the general public, which made them de facto dairy inspectors. If those persons had been public officers, payment of salary to them would have satisfied the city’s obligation, and plaintiff could not recover from the city the salary so paid. (Comm’rs of Saline Co. v. Anderson, 20 Kan. 298.) In grade, plaintiff’s employment lay between an office and a minor position governed by the principle, no work no pay. Civil service law gave plaintiff a certain security of tenure which took him out of the inferior class, but did not place him among those classified as officers. The public, however, had the same interest in performance of the duties of dairy inspector as if the incumbent of the position were an officer. The general welfare was involved. The conditions made it necessary to recognize a de facto incumbent until the de jure incumbent should secure his restoration to employment, and the public policy which was the foundation of the decision in the Saline county case controls. The result is, the city did not owe plaintiff for the portion of the salary attached to the position which was paid to other appointees.
In Mechem’s Public Offices and Officers appears the following:
“As has been seen, the relation between an officer and the public is not the creature of contract, nor is the office itself a contract. So his right to compensation is not the creature of contract. It exists, if it exists at all, as the creation of law, and, when it so exists, it belongs to him 'not by force of any contract, but because the law attaches it to the office.’
“The most that can be said is that there is a contract to pay him such compensation as may from time to time be by law attached to the office.” (§ 855.)
In accord with the view expressed in the last paragraph of the quotation it was held in the Hannon case, supra, that the claims of officers and servants of a city for unpaid compensation are not unlike the claims of ordinary creditors. Their unpaid salaries constitute debts of the city to be recovered in an ordinary civil action.
Just as an officer is privileged to exercise all the functions attached by law to his office, so he is privileged to receive all the salary attached to the office, and an officer who recovers on an unperformed contract to pay compensation is entitled to recover the whole compensation. Plaintiff did not hold an office, and he is not suing for official salary. The position which he held was a subordinate one, and he may not claim .the privileges of an officeholder. The civil service regulations did not affect nature of employment. They merely gave stability of tenure by prescribing the conditions necessary to termination of what would otherwise be employment for an indefinite period. Plaintiff did not possess the independence of an officer. His duties were not definitely fixed by law, and he was required to work under the direction of another. These are badges of employment, and the relation of plaintiff to. the city most nearly resembles that of an employee under a contract fixing compensation and prescribing mode of termination.
Interruption of payment of compensation to plaintiff was brought about by an unauthorized act for which the city was not responsible, and plaintiff had adequate remedy against the wrongdoers for tort, and against those who drew the salary for money had and received. As we have seen, in the case of one having the rank of officer, the public may not be penalized by being required to pay twice. In the case of one having the rank of employee only, the public ought not to be held liable beyond the damages resulting from ordinary breach of contract. In case of breach of contract of employment, the rule relating to minimizing damages applies. The employee is not priv- ' ileged to remain idle at the expense of his employer.
The precise question involved has not heretofore been determined by this court. The cases of McLaughlin v. Green, 96 Kan. 641, 152 Pac. 661, and Youmans v. Wyandotte County, 68 Kan. 104, 74 Pac. 617, cited by plaintiff, are not pertinent. Outside this state there is some conflict among the authorities and those on which plaintiff relies have been carefully examined. It is not necessary to review them. A well-considered opinion on the subject, and one which accords with the clear weight of authority, is the opinion of the appellate division of the supreme court of New York, in the case of Sutliffe v. City of New York, 117 N. Y. S. 813.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to impress a trust upon the estate of a testator in the possession of his widow as sole devisee, for the benefit of his children. The children recovered, and the widow appeals.
The estate consisted of 3,750 acres of land, valued in the petition at twenty dollars per acre, and personal property valued at $20,400. The will, which was duly probated, made a merely nominal bequest to each one of the testator’s three children, and then gave the entire estate to his wife. Recovery was predicated on an oral promise by the devisee, or on an implied promise requiring oral proof to establish it, that she would give the children half of the property. The result of the judgment was to place the estate in the same situation as if the testator had made no will.
The case was tried by the court without a jury. Neither side requested findings of fact and conclusions of law separately stated, .and none was returned. All this court knows about the district court’s view of the facts and of the law is derived from a statement contained in the journal entry, that the court found in favor of the children. The motion for new trial contained two grounds — erroneous rulings in the admission and rejection of evidence, and that the decision was contrary to the evidence.' The assignments of error, besides the formal and inconsequential one that the court erred in rendering judgment as it did, are, error in admitting the testimony of a named witness, and error in denying the motion for new trial.
The testimony complained of was doubtless admitted under the common trial practice, when there is no jury in the box, of hearing a witness, and then regarding or disregarding the testimony as the law may require and as the testimony may or may not have probative value. If the testimony was inadmissible, the presumption is the court disregarded it. If it was admissible, this court is quite satisfied it did not. influence the decision.
The result of the foregoing is, this court has before it but a single question: Was the decision contrary to the evidence? The prin-cipal contention is, the decision was contrary to the evidence, because in this class of cases the law requires proof to an exceptional degree of certainty. Various statements of the rule are quoted, as that the proof must be “clear and convincing,” “conclusive,” “practically overwhelming,” and “overwhelming.” All the authorities agree that a high degree of certainty is required, and the superlatives are employed in an effort to fend against the danger attending application of a doctrine inherently dangerous.
The rule relating to certainty of proof is one for the district court to observe. The subject is not a new one here. In criminal cases, guilt must be proved beyond a reasonable doubt, and if the evidence to support conviction be circumstantial, it must be incompatible with any reasonable hypothesis except guilt. When the trier of the fact is satisfied, the function of this court is limited to ascertaining if there is any substantial evidence to sustain the verdict of guilty (State v. Brizendine, 114 Kan. 699, 220 Pac. 174). The same rule applies when the question is whether a special standard of proof has been met in a civil case (Leverton v. Rork, 74 Kan. 832, 85 Pac. 800; Wooddell v. Allbrecht, 80 Kan. 736, 104 Pac. 559). The judge of the district court is an able judge of long experience, and it is not to be suggested he was not familiar with the rule, or was inadept in applying it. He heard the case twice. At the first trial, judgment was rendered for plaintiffs. A motion for new trial was taken under advisement, and after lapse of a considerable period of time, was granted. The judgment under review must represent a settled conviction respecting the facts which are determinative of the controversy.
The first question which the district court was obliged to determine was whether the testator made his will as he did, or did not change his will, depending on some obligation of his wife to devote to some use the property which probate of the will would vest unconditionally in her. If such an obligation were discovered, the next question was whether it was a moral obligation, arising from regard for the testator’s confidence and trust, respect for his wishes, and a sense of justice toward his children, or an obligation of which the law takes cognizance, arising either from express promise or from manifestation of assent having all the force of express declaration. If legal obligation were discovered, the next question was whether its terms were sufficiently definite and specific to make it capable of enforcement. The evidence is debated here as it must have been debated in the district court, and because this court is precluded, from considering the important factor of personality of the speaking witness, when considering oral testimony, it is hopelessly disqualified to judge of the merits of the debate. There is substantial evidence to sustain each finding of fact implicit in the general finding, and under the settled rules governing appellate review, this court is not permitted to look further. The evidence need not be marshaled here.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The defendant was convicted of murder in the first degree and appeals.
The facts are substantially these; The defendant for some time prior to June 7, 1924, had been engaged in the commission business in Kansas City, Mo. He also carried on a business of making bonds for criminals at various police stations in Kansas City, and did some pawnbroker business though he held no pawnbroker’s license. The chief testimony against him on the murder charge Was by one Vernon Clay, a negro convict. Clay testified that on the morning of June 7, 1924, defendant called him by telephone and asked him to come to his stall at the city market. Upon his arrival there, defendant told him there was an opportunity to pull off a robbery. Defendant pointed Out one Charles Lambert, of Leavenworth, who had come to Kansas City with a track, and advised him that Lambert would leave for Leavenwforth that afternoon; that Clay then made arrangements with two other negroes to accompany him¡; that the three waited for Lambert to depart; followed him in an automobile from Kansas City, Mo., over the intercity viaduct to Kansas City, Kan., and from thence on the road to Leavenworth; that around half-past three or four o’clock, when some two miles south of Lansing, they drove up behind Lambert and ordered him' over to the side of the road. At that time one of Clay’s companions fired a shot at Lambert’s truck. Lambert returned the fire, but was mortally wounded and died the next day. Clay and one of his companions boarded an interurban car and returned to Kansas City. The third drove back with the car. The three negroes were apprehended. One turned state’s evidence and took a sentence of second-degree murder; the other two are serving time for first-degree nfurder. (See State v. McReynolds, 118 Kan. 356, 234 Pac. 975.) Clay testified to various other robberies he had comfoaitted through the instigation and aid of the defendant, and that they had divided the spoils.
The defendant contends that the court erred in permitting the county attorney to make an opening statement inferring that the defendant committed murder when he was charged only with felo- . nious assault; also in overruling his motion to discharge when there •was a variance between the allegations of the information and the county attorney’s opening statement.
The information contained the usual preliminary basic allegations and that—
“One J. L. Baker . . . did. then and there unlawfully, feloniously, willfully, maliciously, deliberately, premeditated^, on purpose and with malice aforethought in and upon one Charles Lambert, then and there being, make an assault with intent to kill him!, the said Charles Lambert, and the said J. L. Baker and Vernon Clay, Lloyd McReynolds and David Parker, with a deadly and dangerous weapon, to wit: etc. . . . did then and there unlawfully, etc., . . . shoot off and discharge said revolver at, against and upon the said Charles Lambert, thereby striking the said Charles Lambert with said leaden bullets and giving to and inflicting in and upon the body and side of the said Charles Lambert, certain serious, dangerous and deadly and mortal wounds with the intent on the part of the said J. L. Baker, Vernon Clay, Lloyd McReynolds and David Parker in and upon the said Charles Lambert then and there unlawfully, feloniously, willfully, maliciously, deliberately, premeditatedly, on purpose and with malice aforethought to kill and murder.”
In concluding his opening statement, the county attorney said:
“If the statements I have made to you are true and this man did lay out the plan whereby these boys were to follow Lambert and afterwards overtake him and rob him, and that he acted generally in the scheme and abetted, advised and counseled Clay and the man Parker in the killing of Lambert, then our contention is that Baker is guilty of murder in the first degree.”
Counsel for defendant: “At this time the defendant waives his opening statement and moves the court to discharge the defendant upon the information filed in this case and in view of the opening statement in support of that information that has just been made by the county attorney.”
County attorney: “I do not remember whether I said Mr. Lambert was killed in Leavenworth county or not. He was killed near Wenzel’s place in Leavenworth county, and I want to amend my statement to that effect.”
The court: “The motion to discharge is overruled.”
From which it appears that the defendant did not specifically direct the court’s attention to the point he was urging in his motion to discharge. Some time later in the course of the trial (the second or third day) defendant’s counsel said:
“At this time, I wish to call attention to the fact that the information in this case charges assault with intent to kill.”
The court: “I am aware of that fact.”
While the record is not entirely clear, we understand the sufficiency of the information as to the charge of murder was not raised until the second or third day of the trial. Also, that the defendant exercised nine challenges, which indicated that at the time of the impaneling of the jury he proceeded upon the theory that the in-. formation did charge the crime of murder in the first degree. The state asserts that in spite of the fact that the common-law rule required an allegation to the effect that the deceased died as a result of the wound inflicted, the allegations of the information as they stood charged the offense of murder in the first degree. It has been held that:
“The particularity of the common-law system or rules of pleading does not prevail here. As a general rule, it is sufficient if the offense is charged in the language of the statute, and even the statutory words defining the offense need not be strictly pursued, but others conveying the same meaning may be used.” (State v. McGaffin, 36 Kan. 315, 319, 13 Pac. 560.)
Also that it is not necessary to state that the wounds were mortal, or that the wounds received resulted in death.
“While the information does not in so many words allege that the wounds were inflicted by the shooting, or that they were mortal and resulted in. death, it does allege distinctly that Foley was killed and murdered by the defendant at a fixed place and upon a certain time, by means that are described, and in language that can leave no doubt as to the character of the wounds inflicted or the cause of the death. We think the information contains the essential averments of a charge of murder.” (State v. Kirby, 62 Kan. 436, 440, 63 Pac. 752.)
The information alleged the “giving to and inflicting in and upon the body and side of him, the said Charles Lambert, certain serious, deadly, dangerous and mortal wounds.” To say that one inflicted upon another a mortal wound is to say that he killed him. A mortal wound is a death-producing wound. The words “murder” and “mortal” are both derived from the Latin “mors.” “Mortal means destructive to life, causing or occasioning death; terminating life; exposing to or deserving death; deadly, as a mortal wound; mortal sin; of or pertaining to the time of death. (Webster.) In State v. Truskett, 85 Kan. 804, 118 Pac. 104, it was said:
“Where an information for murder plainly charges that the defendant shot and killed the deceased with a pistol loaded with powder and ball, an allegation that a mortal wound was inflicted thereby is unnecessary.” (Syl.)
And in the opinion the court continued:
“The information was direct and certain, and the offense was clearly charged as required by the criminal code. [Crim. Code, sections 104, 109.] The criticism is that it was not charged in the information that a mortal wound was inflicted upon the deceased. As the information, in ample form, charged that the appellant shot and killed the deceased with a pistol, it seems a wound was inevitable — a shot that kills, in the ordinary course of events, must wound. It is true that in many of the time-honored forms of indictment the infliction of a mortal wound is set .out, and it may be that some courts have held the omission of such an allegation fatal, but our statute provides simple rules which fully protect the rights of the accused without needlessly encumbering the record with useless repetition and verbiage. A person who is plainly charged with the .willful, deliberate and premeditated murder by shooting another with a revolver cannot fail to understand the nature of the charge whereof he is accused.” (p. 805.)
Both state and defendant suggest that a clause alleging “of which said . . . mortal wounds said Charles Lambert died,” which was contained in the complaint through an inadvertence was omitted from the information, and the state, while conceding that the information was subject to criticism, maintains that it sufficiently charged the crime of murder. The defendant argues that he was misled, and proceeded upon the theory that the information charged only assault with intent to kill, and that the trial court proceeded upon the same theory and went so far as to prepare instructions in conformity with such theory. The trial court on due consideration, and we think rightly, concluded that the information sufficiently charged the crime of murder, and so instructed the jury. The record discloses no prejudice to the defendant resulting therefrom.
The defendant contends that “the court erred in allowing known and admitted perjury evidence to be considered by the jury.” This goes to the evidence of the witness Clay. Clay had previously been tried for his part in the murder. At his trial he interposed a defense to the effect that he Was riding in an automobile with McReynolds and Parker, bound to Leavenworth to indulge in a crap game. His testimony in support of that position was not beli.eved by the jury. He was found guilty of murder in the first degree. It does not necessarily follow, of course, that the mere fact that Clay was found guilty in his own case is proof positive of the fact that he was telling the truth in this case. However, the jury believed his testimony that Lambert was killed in an attempt at highway robbery, and after all it was a question for the jury.
“Where two persons are jointly charged with arson and upon a separate trial one of them is offered as a witness against the other, the testimony of such witness, although an accomplice, is competent, and his uncorroborated evidence, if otherwise sufficient, will sustain a verdict of guilty, but the credit to be given to the testimony of an accomplice is a matter for the determination of the jury.” (State v. McDonald, 107 Kan. 568, 193 Pac. 179, syl. f 1.)
Defendant contends the court erred in allowing his character to be attacked before he had placed it in issue. The court permitted the state to show that the defendant, Baker, had at different times given the witness, Clay, revolvers and at different times Clay and defendant had been associated in various holdups and robberies in Kansas City, Mo., and had divided the proceeds of such robberies. The court repeatedly stated, upon objections being interposed by counsel for defense, that such testimony was proper for the purpose of showing the relation existing between the parties at the time of the commission of the offense charged. It was not improper. In State v. McReynolds, 118 Kan. 356, 359, 234 Pac. 975, it was said in the opinion:
“The general rule is that on a prosecution for a particular crime, evidence which in any manner shows or tends to show that accused has committed another crime wholly independent of that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible.” (See, also, State v. Raynolds, 5 Kan. App. 515; State v. Kirby, 62 Kan. 436, 63 Pac. 752; State v. Wheeler, 89 Kan. 160, 130 Pac. 656.)
“While there are several well recognized exceptions to the rule excluding evidence of other offenses and these exceptions are founded on as much wisdom and justice as the rule itself, the rule should be strictly enforced, and should not be departed from except under conditions which clearly justify such a departure. The general rule does not apply where the evidence of another crime tends directly to prove defendant’s guilt of the crime charged. Evidence which is relevant to defendant’s guilt is not rendered inadmissible because it'proves or tends to prove him guilty of another and distinct crime.” (16 C. J. 587. See, also, McFarland v. State, 4 Kan. 68; State v. Folwell, 14 Kan. 105; State v. Adams, 20 Kan. 311; State v. Cowen, 56 Kan. 470, 43 Pac. 687; State v. Hansford, 81 Kan. 300, 106 Pac. 738.)
It is contended that the evidence of conspiracy was insufficient; that the testimony of Vernon Clay viewed in its most favorable light was that the decedent Lambert was to be robbed by “strong-arm” methods, whereas the robbery was attempted by the use of firearms; also that while a person without the state, consummating or committing an offense by an agent or means within the state, is liable to be punished by the laws thereof (R. S. 62-402) that it is elementary that the acts of an agent bind his principal only when done within the scope of the agent’s employment. The contention cannot be sustained. The evidence was sufficient to sustain the conviction. (See State v. Wolkow, 110 Kan. 722, 205 Pac. 639, and cases cited. R. S. 21-401, R. S. 62-1016.)
Other contentions that the court erred in depriving defendant of his constitutional rights in the admission and rejection -of evidence, in the giving and refusing of instructions, refusal to grant a new trial, to set aside the verdict and in passing an alleged unlawful sentence, have all been considered but cannot be sustained.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The first and second assignments, of error are based upon the admission of the evidence of one Heath, over the objection of defendants, that he obtained certain bottles of liquid from the under-sheriff, who seized some filled bottles at the time of the arrest; that he took them to Professor Lovewell to be analyzed and remained until the work was done, and had had the bottles in his possession ever since, producing two bottles which he said were the same. Professor Lovewell was called as a witness in regard to the analysis, and on objection his evidence was excluded. Thereupon the defendants moved to strike out the evidence of Heath in regard thereto, which motion the court denied.
It is urged that the defendants were prejudiced by the display of the bottles and the statement that an analysis had been made. The court might well have allowed the motion to strike out. However, in ruling upon the proffered testimony of Lovewell the court said, in the presence of the jury, that he did not think the evidence “competent for the sale alleged to have been made on a day previous to the time it [the liquid in the bottles] was taken.” This in effect withdrew the evidence from the consideration of the jury, so far as the alleged sales were concerned, and cured the error, if there was error.
Again, it is urged that the court erred in giving the following instruction:
“It is not necessary, in order to establish the offense charged, that the state should prove the charge or crime to have been committed on the exact day alleged in the information. It would be sufficient to show that the crime was committed at any time within two years prior to the 14th day of September, 1904, which was the day this prosecution was begun.” ‘
This is the usual and correct instruction given relating to the certainty of date and the limitation of the action where, as is usual, only one crime is charged in the information, but was erroneous and misleading in the case at bar. In this case there were six illegal sales charged. Under the order of the court the prosecution had elected to rely for conviction on a particular date for each, and, under the fifth and sixth counts of the information, upon sales made upon the 10th day of September, 1904; and one of the defendants had produced evidence that he was not in Peabody on that day, but was miles away in another town.
It is said this instruction not only nullifies the election of sales the prosecution had been required to make, but also destroys the effect of the proof of an alibi. In answer to this it is sufficient to say that the above instruction is general in its terms, and that in the seventh instruction the court told the jury that before they could convict the defendants upon the fifth count of the information they must find beyond a reasonable doubt that defendants sold intoxicating liquor to one Harvey on the 10th day of September, 1904, as testified to by Harvey, Kelly, and Kelshimer. Also, in the eighth instruction, the jury were told that before they could convict the defendants on the sixth count they must believe beyond a reasonable doubt that the defendants sold intoxicating liquor to witness Kelshimer, in the presence of Harvey and Kelly, at the place testified to by these witnesses, on September 10, 1904. These specific directions, which cannot be mis understood, cure the error in the foregoing instruction as to time.
The contention of appellants that the above-quoted instruction nullifies the evidence that one of the defendants was absent on the 10th day of September, 1904, from the place where the offenses were alleged to have been committed would have more weight were the personal presence of such defendant essential to his guilt, as in the cases of The State v. Abbott, 65 Kan. 139, 69 Pac. 160, and The State v. Conway, 55 Kan. 323, 40 Pac. 661. In the case at bar the defendant who claims to have been elsewhere at the time the offense is claimed to have been committed may have been equally guilty, whether absent or present. Therefore no instruction as to the alleged alibi was necessary.
It is claimed that the court should have granted a new trial for the misconduct of counsel for the state. The record discloses no such misconduct prejudicial to appellants that was not corrected at the time it occurred.
The newly discovered evidence set forth in the affidavits on the motion for a new trial is almost entirely impeaching in its nature. New trials should not be granted, generally, for the purpose of producing impeaching eyidence. (The State v. Stickney, 53 Kan. 308, 36 Pac. 714, 42 Am. St. Rep. 284; Clark v. Norman, 24 Kan. 515; The State v. Smith, 35 Kan. 618, 11 Pac. 908, and cases cited.) The witness Kelly, by his affidavit, squarely impeached his own testimony given on the trial. Indeed, he expressly stigmatized his testimony as false. Again, he appeared and testified orally on the motion for a new trial and in effect said his statements in the affidavit were false; that he was induced by threats and fear to make the affidavit. Yet he is shown to have driven to town, part of the way alone and part of the way with one of the attorneys for defendants, for the very purpose of making the affidavit. It is not in the interest of justice to convict accused men on the testimony of creatures, capable of such conduct. The conviction of the defendants, however, does not rest alone upon the testimony of Kelly.
The granting or refusal of a new trial is largely within the discretion of the trial court. The court sees and hears the witnesses, and has a better opportunity to know whether justice has been done than this court can have, and its ruling on such a motion has something of the standing of a finding of fact deduced from conflicting evidence and should not be disturbed except for error of law or for a manifest disregard of facts amounting to an abuse of discretion. (City of Sedan v. Church, 29 Kan. 190; Investment Co. v. Hillyer, 50 Kan. 446, 31 Pac. 1064; Shepard v. Lynch, 26 Kan. 377.)
The defendants appear to have had a fair trial, and the judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Graves, J.:
This is an action to recover damages on account of injuries sustained by reason of a defective street. The plaintiff in error complains of many errors on the part of the trial court. The most of them are unimportant, some of them trivial, and very few justify examination and discussion. The most important will be considered.
The city moved to require the plaintiff to make his petition more definite and certain, so as to show the exact nature, extent and location of his injuries, internal and otherwise. This motion was allowed, and the plaintiff filed an amended pleading which alleged in substance that he was injured in the stomach, bowels, and abdomen, near the center; that it caused him to vomit blood and pass blood from the bowels, producing constipation and great weakness; that he could not state the exact nature, extent and location of his internal injuries, except as advised by his physician, who informed him that the injury was serious, but he could not name or locate definitely the exact organ, membrane, ligament or muscle involved. The defendant then moved to strike the petition from the files because the order that it be made more definite and certain had not been complied with. The motion was denied, and the ruling thereon is alleged as error. The city insists that without this “inside information” it could not anticipate what it would be confronted with on the trial, and make adequate preparation therefor. It also urges with great force that these facts are “peculiarly within the knowledge of the plaintiff,” and that it was material error to refuse to compel a disclosure.
It must be conceded that matters peculiarly within the knowledge of a plaintiff and important to the defendant should be stated in the petition. The fact that the injuries complained of are within the very person of the plaintiff, and by reason of their painful character are in a certain sense “constantly in his mind,” may give color to the contention that in a legal sense they are “peculiarly within his knowledge.” But, when we consider how little the average citizen knows of his internal structure, it seems probable that the plaintiff was unable to give more specific information on this subject. No prejudicial error is apparent on account of this action of the court.
The city then demurred generally to plaintiff’s petition, and contended that it did not allege negligence. The demurrer was overruled. The petition stated, substantially, that the defendant was a city of the second class, having within its corporate limits two streets which were much used by people passing from the business part of the city to a railroad depot; that on one of these streets the city had constructed a ditch four feet deep, and on a dark night left the same open, unguarded, and without lights or other warning to travelers of its existence; that the plaintiff on that night, while passing along that street, ignorant of the ditch, and unable to see it because of the darkness, fell into the same and was injured; and that he fell with great violence, striking his abdomen upon a rock in the bottom of the ditch. As against a general demurrer, this is sufficient.
Objections are made to the rulings of the court upon the admission and rejection of evidence. The most important one was the overruling of the defendant’s objection to the following question: “What was his condition as to whether or not he was able to go to work during the time he was there?”
This was timely and properly objected to. It involved a conclusion as to the extent of plaintiff’s injury, a very important fact in the case. Even if the objection was erroneously overruled the error was cured by the answer, which was as follows:
“Well, as I said before, he was in bed the next morning, and we went down to see why.he had n’t gotten to work, and he had a hemorrhage and said that he was sick, and went on to state how he got hurt and so forth; and he was in bed there for a day or two in that bunk, and was under the doctor’s care; that would lead me to believe he was n’t able to go to work.”
(See Insurance Office v. Woolen-mill Co., ante, p. 41; Sparks v. Bank, 68 Kan. 148, 74 Pac. 619.)
Other objections were made to the admission of expressions of pain on the part of the plaintiff, but, within the rule of A. T. & S. F. Rld. Co. v. Johns, 36 Kan. 769, 14 Pac. 237, 59 Am. Rep. 609, the evidence was proper. The city cites the case of Railway Co. v. Logan, 65 Kan. 748, 70 Pac. 878, as an authority against the admission of such evidence, but in that case the plaintiff stated how he got hurt, and not how he felt. Therefore, the case does not apply.
It may be said of many of the objections presented that, even if the ruling of the court had been erroneous, the error would be unavailable for the reason that evidence of the same character was permitted to be introduced without objection, so that the little that was objected to could not be said to have been prejudicial.
The city was inexcusably negligent. Its rights were not sacrificed by any errors apparent in the record. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
John Stahl insured a stock of merchandise against fire in the Phenix Insurance Company. The policy contained what is known as the “iron-safe” clause, requiring certain books and documents pertaining to the business to be kept in an iron safe at night and at other times when the building containing the goods was closed, and providing that a failure on the part of the insured to comply with this condition should avoid the policy. A loss occurred and some of the documents referred to were destroyed by reason of the neglect of the insured to place them in the safe, according to the terms of the clause mentioned. An adjuster for the company visited the scene of the fire, was informed in a general way of the situation, and suggested that other documents might be accepted in lieu of those destroyed, but refused to proceed further until Stahl should sign a “non-waiver agreement,” reading as follows:
“John Stahl, assured under policy 21,054 of the Phenix Insurance Company, of Brooklyn, N. Y., . . . hereby requests A. E. Pinkney, adjuster, to make examination of books and papers and other evidences of loss (including assured’s sworn statements, if deemed necessary), which he submits to him for the purpose of ascertaining the amount of loss sustained by assured on stock of merchandise,- . . . with the express understanding and agreement that such examination shall not be Considered an acknowledgment of any liability of the said Phenix Insurance Company, of Brooklyn, N. Y., under said policy, nor a waiver or impairment of any of the rights or defenses of said company under said policy, nor a waiver or impairment of assured’s obligations thereunder. It is further understood and agreed that any legal rights, if any, the said John Stahl may have under said policy are not impaired by his act in signing this request.”
This agreement, after some discussion, was executed by both parties. Proofs were then submitted and examined, but the company.finally refused payment. The insured brought an action upon the policy and recovered a judgment, from which the defendant prosecutes error.
The judgment can be sustained only in case there was some evidence tending to show that the insurance company had waived the right to claim the benefit of the failure on the part of the insured to observe the provisions of the iron-safe clause. The evidence relied upon by the defendant in error as having this effect was in substance that before the non-waiver agreement was signed the company by its adjuster instructed Stahl what proofs he would have to submit in order to have his claim considered, and stated that if he would make such proofs after signing the agreement the company would settle with him and pay his loss; and that afterward he did furnish all the proofs required of him. While there was some talk about the matter of making proof of loss before the non-waiver agreement was signed, nothing was in fact done toward an adjustment until afterward. In this aspect the case is the exact counterpart of Insurance Co. v. Knerr, ante, p. 385, under the authority of which the judgment must be reversed, unless a basis of distinction can be found in the statements made on behalf of the company before the execution of the non-waiver agreement. The trial court told the jury in effect that if before that time the adjuster instructed Stahl to procure certain proofs, and Stahl afterward did so without having received any notice to the contrary, this might be held to constitute a waiver on the part of the company. In this we think the court erred. Stahl’s efforts to furnish for the information of the company satisfactory evidence of the extent of his loss were all made after entering into the non-waiver agreement, and must be viewed in the light of that instrument, even although they conformed to directions previously given.
The evidence that prior to the execution of the non-waiver agreement the adjuster said that if the insured would furnish certain information after signing the agreement the company would settle with him and pay his claim cannot avail the defendant in error. This statement is alleged to have been made in the course of the oral negotiations leading up to the execution of the written contract, the terms and purposes of which it would destroy if given any effect whatever. To permit a verbal promise made under such circumstances to prevail over the written agreement finally made would be to countenance the very evil against which the rule forbidding the contradiction of writings by oral testimony is designed to afford protection.
Objections have been made to the consideration of the case on review. These have been examined and found not to be well taken. In view of the conclusions already announced the specific assignments of error are not thought to require discussion.
The judgment is reversed and a new trial ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
In 1882 S. W. Shattuck was appointed guardian of certain minor children. In 1885 he loaned the money of his wards, and took, to secure it, a note and mortgage running to “S. W. Shattuck, guardian.” In 1893 he brought suit to recover the amount of the note and to foreclose the mortgage. The petition was entitled “S. W. Shattuck, guardian, plaintiff,” and was signed in the same manner.
In 1894 the guardian filed in the probate court his final account in the guardianship proceedings, in which he took credit as guardian for the money loaned, and charged himself as guardian with the note and mortgage. He also took credit as guardian for the expenses of the foreclosure suit to the date of the settlement. The wards had then become of age, and contested the conduct of the guardian; but, after a hearing, the probate court held with him, approved his accounts, found that the note and mortgage belonged to the wards, discharged the guardian and made provision for the delivery of the securities to the owners, who, however, at the time declined to receivé them. The guardian took no further steps in the foreclosure suit, but Sarah G. Shattuck, a second mortgagee, who had been made a party defendant, obtained a judgment enforcing her lien, and after many years’ delay caused the land to be sold.
A short time previous to the issuance of the order upon which the land was sold the former wards filed an application to be substituted as plaintiffs in the suit in place of S. W. Shattuck, guardian, reciting the fact of his appointment as their guardian, the taking of the note and mortgage in his fiduciary capacity, their arrival at the age of maturity, the guardian’s discharge by the probate court, and their ownership of the paper. When the sheriff’s return of the sale of the mortgaged property was filed they interposed objections to its confirmation, and later, finding the note and mortgage in the hands of the court stenographer, they filed a motion asking that the documents be turned over to them. The Shattucks objected to the consideration of the motion for substitution on the single ground that it did not contain facts sufficient to warrant the order prayed for, but the objection was overruled, and, on January 7, 1904, the three motions referred to came on for hearing. All the parties appeared and announced themselves ready for hearing and trial, and evidence was introduced, both in support of the motions and in opposition to them. On the evidence submitted the court found in favor of the substitution of parties and directed that it be made. The hearing of the motion to confirm the sale was continued, and the note and mortgage were impounded in the possession of S. W. Shattuck, jr. (the attorney for the ex-guardian), until the further order of the court. S. W. Shat-tuck and Sarah G. Shattuck prosecutes error.
The plaintiffs in error argue that the guardian was a personal representative whose powers ceased upon his discharge, within the meaning of those sections of the code of civil procedure relating to the revivor of actions; that the proceedings in the district court should have been governed by the' revivor statute; that the motion for substitution was in effect a motion to revive; that, because more than a year had elapsed after the powers of the guardian had ceased, the court was without jurisdiction to make the order complained of, except by consent, which was withheld; and that the general objection to the motion for substitution should have been sustained. The answer to this argument is that the suit in the district court did not abate when the wards became of age and the guardian was discharged.
Although the guardian acted for the benefit of his wards, both in taking the securities and in bringing suit to enforce them, they were drawn in such a manner that he was prima facie invested with full title to them, and with full authority to enforce them as his own. Descriptive words in commercial paper may become important if the matter of notice be involved (Loan Co. v. Essex, 66 Kan. 100, 71 Pac. 268; 1 Dan. Neg. Inst., 5th ed., § 271), but usually such words as “executor,” “administrator,” “trustee” and “guardian” may be disregarded and an action may be maintained by the payee in his personal right. (7 Cyc. 563.) When suit was commenced the petition was carefully drawn to follow the language of the note and mortgage in describing the plaintiff and his cause of action. He did not commit himself to the position that the suit was brought in his representative capacity, and in legal theory it was not. (8 Encyc. Pl. & Pr. 670; 9 Encyc. PL & Pr. 939.) Therefore, the legal status of the case was not affected by the majority of the wards or the discharge of the guardian, and the suit might have proceeded to judgment and execution precisely the same as if only the individual name of the plaintiff had been used, had not the beneficiaries of the trust, who were not necessary parties in the first instance (Code, § 28, Gen. Stat. 1901, § 4456), intervened.
“The legal right to a promissory note, payable to a guardian in his trust capacity, remains, prima facie, in the obligee, notwithstanding his discharge as guardian, and he may sue thereon, unless it be shown that he has parted with the title, so that payment to him would not discharge the obligor. And the title in such case, with the right to sue, will pass, on the guardian’s death, to his personal representative; nor does an action on such a note, commenced by a guardian during the ward’s minority, abate because the ward has attained majority before its termination. So a guardian may properly sue for and recover money collected for her as such guardian, notwithstanding the ward’s majority before the beginning of the action.” (Woerner, Am. L. of Guard., § 58.)
“Where an action is prosecuted by A., guardian of B., on an instrument payable to ‘A., guardian of B.,’ the fact that the ward becomes of age pending the suit affords no ground to abate it.” (Gard v. Neff, 39 Ohio St. 607.)
“If a ward attain the age of twenty-one during the pendency of the suit, he may be substituted as party plaintiff in lieu of his guardian.” (Sims, Ordinary, v. Renwick and Cobb, 25 Ga. 58.)
Since, however, the suit was in fact prosecuted for the benefit of the wards, they were entitled, upon be coming of age, to be made parties to it, to assume its management and control, and to enjoy any benefits which might be obtained by means of it.
One of the issues made by the application for substitution concerns the ownership of the cause of action, and the plaintiff, apparently in utter obliviousness of the -fact that a moral order pervades the universe which legal systems seek to emulate and aid, now. undertakes to deny that the note and mortgage belonged to his wards at all. In spite of the circumstance that, in a contest in the probate court, he proved against his wards that they were such owners, in spite of the fact that he obtained allowances out of their estate on the ground that they were such owners, and in spite of the fact that he undertook to turn over the paper to them as such owners, he now calmly asserts that his original conduct amounted to a conversion of the funds of the infants whose property he had been appointed to guard, and upon that fraud attempts to build an argument which, if valid, would result in depriving the owners of both their money and their securities. This claim of the plaintiff is stated in order that he may not be under the impression that it has been overlooked. Its legal character and conscientious quality need no elucidation. The finding of the trial court in opposition to it is sustained both by the law and by the evidence.
The refusal of the former minors to accept the note and mortgage immediately upon its tender, after their defeat in the probate court, is urged against them. What detriment the plaintiffs in error have suffered on this account so that it may lie in their mouths to deny to the applicants a right of recovery is not disclosed.
The possession of the note and mortgage by the substituted plaintiffs is not essential to a vindication of their rights, but under the evidence and the findings they are entitled to such possession, and the present custodian of the documents will doubtless yield them to the owners without tempting the power of the court.
Finally, it is urged that the court undertook to try and determine the title to personal property in a summary manner, upon a mere motion, without formal pleadings and without a jury, with the result that the plaintiff was turned out of court. The motion, however, distinctly asserted ownership of the note and mortgage and set forth clearly the facts relating to the claimants’ title, and when the matter was called up in court for disposition the plaintiffs in error, without making any request that formal pleadings be filed, without making any suggestion that the matter should be tried as if it were of the nature of an interplea, without asking that it should go over to be heard with the merits, without any demand for a jury, and without any objection whatever to the form of the proceeding, announced themselves ready for trial and proceeded to try the title to the note and mortgage in controversy. A record was made as in any other case, and the plaintiffs in error have abundantly shown that they have a complete and unhampered right to review in this court.
Whether any other practice exists for the determination of such questions cannot be of much importance in this case. The one adopted appears to have been entirely satisfactory to the plaintiffs in error. The court had jurisdiction to enter upon the inquiry and the participating parties are effectually concluded bjr its result, except, of course, for trial errors reviewable as in other civil cases; and, aside from the matter of waiver and estoppel by want of objection and by consent to the trial, the question of the finality of the proceeding is to be determined by regarding the substance of what was done rather than the form under which the result was reached. (Comm’rs of Wilson Co. v. McIntosh, 30 Kan. 234, 1 Pac. 572.)
The judgment of the district court is affirmed*
All the Justices concurring. | [
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Per Curiam:
The only question argued in this case by the plaintiff in error is that there was an absolute want of any testimony to support the judgment in the court below. With this contention we cannot agree. There is not only substantial but sufficient evidence found in the record to support the conclusions and judgment of the court. For this reason the judgment is affirmed. | [
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Per Curiam:
The plaintiff complained that the defendant in operating its brick plant threw smoke, dust and cinders upon her premises, killing trees and causing other injury. She asked to have the business enjoined, and to recover damages. The defendant answered that it had been making brick there for more than twenty-five years — for a long time before the plaintiff acquired her property — from a bed of shale near which the plant is built; that the business was lawfully and carefully managed; and that the annoyance and injury to the plaintiff were not such as warranted an injunction or the award of damages.
Whether the plaintiff had sustained an actionable injury was the principal issue tried, and, after a great mass of conflicting testimony had been heard, the court made a general finding in favor of the defendant. No special findings were made, and hence there is no way of learning the view of the court on the different elements involved in the general finding. The defendant is bound to make a lawful and reasonable use of its property, and, if it make an unlawful or unreasonable use, so as to produce material injury or great annoyance to those in the neighborhood, the law will hold it responsible for the consequent damage. The making of brick is a useful and necessary business, and the fact that it may produce some annoyance or discomfort to those near by does not necessarily justify interference or create civil liability. Ordinarily an owner may make a lawful and reasonable use of his property although it may cause some annoyance and discomfort to those in the vicinity, if such inconvenience and discomfort are only slight, and are the natural and necessary consequences of the exercise of the owner’s right in developing the resources of his property. Whether the use was unreasonable and the inconvenience and injury serious and substantial, or only slight and trivial, were the questions submitted to the trial court for determination. As bearing on the questions involved, see Fogarty v. Pressed Brick Co., 50 Kan. 478, 31 Pac. 1052, 18 L. R. A. 756; Railway Co. v. Armstrong, 71 Kan. 366, 80 Pac. 978, and cases there cited.
The testimony tended to show that the plant is located in a sparsely settled district; that the shale on the' land is specially adapted to the manufacture of vitrified brick; that it is the only place in the community where the shale is found, and, also, that the chief value of the land is in the shale; and that in the manufacture of brick the defendant was, therefore, only developing the natural resources of its land. Modern methods and appropriate appliances were used by the defendant in the manufacture of the brick, and there was no negligence in the operation of the plant.
There is a sharp conflict in the testimony as to the consequences of the operation of the plant, and, while some inconvenience and discomfort result from the operation, there is testimony which fairly supports the finding that it is not so serious and substantial as to require the abandonment of the enterprise or the recovery of damages.
The objections to the rulings on the admission of. testimony are not material.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The petition failed to state that the defendants Merriam and the National Life-insurance Company, in case No. 14,290, had any knowledge of any fraudulent misrepresentations on the part of William E. Lodge or of any mistake of facts that induced the plaintiff to execute the agreement of 1879, and did allege in substance that these defendants paid a valuable consideration for the mortgages held by them. The ruling of the court in sustaining the demurrers of these defendants is affirmed.
The court erred in the seventh and eighth so-called findings of fact, which were really conclusions of law, and in the first and second conclusions of law.
The transaction detailed by the findings of fact was in no sense an assignment of dower. The plaintiff was entitled, as dower, to one-third of the use of the Illinois land during her lifetime, and commenced an action to have such dower assigned to her. The heirs to the fee had parted with their interest in the land and it was desired to unite with the fee title the entire use and right of possession. She had a right in action for such dower, but, instead of pursuing her action and having her portion assigned and taking the annual income, she compromised. She released and sold to the owner of the fee all her rights for a lump sum, as she would have sold a life lease or a mortgage upon the land. For this she received $6000, through her agent or trustee — not the use of $6000 during her life. Nor did the amount she was to receive depend upon whether she lived one year or fifty years.
No statute of the state of Illinois upon the subject was offered in evidence, and it is -not to be presumed that it had any. By the common law, however, which was in force in that state, a dower right could not, at least before assignment, be sold or conveyed by deed. Nor could it be released to any one not the owner in whole or in part of the fee, or not so related to the fee that the release thereof would unite it with the fee. Such release could be purchased by the fee owner or by any one so related thereto, and could be made by the dowress for any consideration agreed upon by the persons interested. (Hart v. Burch, 130 Ill. 426, 22 N. E. 831, 6 L. R. A. 371; 10 A. & E. Encycl. of L. 146, et seq.) A release sold to one capable of purchasing was in no sense an assignment in bulk, and the purchase-price did not remain a part of the deceased husband’s estate. Indeed, as in this case, the price frequently was paid' by one who had no interest in such estate, and it became the absolute property of the dowress, as did the $6000 paid to plaintiff’s agent in this case.
The writing given by plaintiff to William E. Lodge authorized him to sell and release this dower right, and the court found that he did sell it at a price authorized by her and to a person empowered by law to buy it. The court also found that William E. Lodge advised the plaintiff that she had only a life-interest in the money to be obtained for such dower; that she was ignorant of the law; and that she believed and relied upon such advice in executing the writing of 1879.
There is no suggestion of bad faith or of illegitimate personal gain on the part of William E. Lodge in giving this advice, nor in the subsequent handling of the $6000 for more than twenty years. It is impossible to tell, and idle to speculate, how far this mistake of the plaintiff and her attorney influenced her action in making the agreement of 1879; whether she would otherwise have sold her right for $6000, or what disposition she would have made of the proceeds. She received more than one-third of the selling price of one-third of the land. For the use of the $6000 she has received $400 annually, free of all expenses, from 1879 to the commencement of this suit. It seems not to have been a bad settlement, and certainly has resulted in a fair income on the amount received. But the trial court erred in its conclusions of law, and on the facts found the plaintiff is entitled to relief. The facts being found, it is the duty of this court to direct what judgment is to be rendered when the case is remanded. What should that judgment equitably be as between all parties in interest? The plaintiff asks that the contract between herself and William E. Lodge, made in 1879, be set aside, and that she be adjudged the owner of the land bought, in part, with the money which came into Lodge’s hands by reason of the contract, free of all encumbrances except sufficient of the mortgage lien to equal the purchase-price of the land in excess of the $6000 which was paid. Would this be equitable?
The situation, briefly stated, is this: The written statement of 1879 was executed by plaintiff and William E. Lodge not through any intended fraud but under a mutual mistake of law and fact. He sold and released her dower and received the proceeds, $6000, and used and invested the same so that she received the amount of the income stipulated ($400 annually) for over twenty years. Much of the time it was invested in the land in question. He is directed by the writing that at her death the $6000 is to go to the sons of her deceased husband. Lodge got these sons to go upon the land in question and tried, apparently without any self-seeking, to put them in a position to pay the $400 annuity and the mortgages, and to become the absolute owners of the land on the death of plaintiff. They failed, as they failed to keep their father’s estate in Illinois. The mortgage liens upon the land grew larger and larger. Lodge then, as “trustee,” conveyed these lands to his own sons, the defendants in this suit, who assumed and agreed to pay the mortgages and also delivered to him their unsecured, non-negotiable promissory notes for $3000 each, bearing interest at seven per cent, annually, the principal to be paid at the death of the plaintiff to the Williams sons. This was a breach of the trust imposed in William E. Lodge and a violation of the agreement which authorized him to invest the $6000 “in improved lands or in mortgage loans on improved land.” His sons also knew this was a breach of the trust and participated in it.
The interest was paid, and, about three years after this transfer, Lodge took from his sons a mortgage on the land in question, subject to the prior mortgage for $12,000, and a first mortgage on another 160 acres of land, to secure two other notes for $3000 each, given in lieu of the unsecured notes. A few years later William E. Lodge died, evidently unconscious, as was the plaintiff, that a mutual mistake had been made by them in 1879. His death in a sense ends the contract between him and the plaintiff.
Assuming that the mortgagees, who took liens on the land in question for moneys loaned, and Lodge’s sons, who bought the land and assumed to pay the mortgage thereon, gave their notes for $6000 and for years paid interest thereon, and finally secured the payment of the $6000 and interest by mortgages on this and other lands owned by them, knew the conditions and provisions of the writing of 1879 but knew nothing of any mistake or mistaken advice, should they suffer by reason of such mistake, for which they were in no wise responsible? The answer must be in the negative. Nor must they profit by the mistake.
As to the Williams sons and their heirs the provisions of the agreement were a gratuity. They have paid no consideration therefor, but have derived benefits instead of being placed in a worse position by reason thereof. The plaintiff by her petition has revoked such provisions, as at all times she had a right to do.
In the absence of proof or a finding that the $400 paid annually to the plaintiff was derived from the rent of the land — and the circumstances indicate the contrary — she is not entitled to interest on her money invested in the land and to the advance in the value of the land also. Under certain circumstances she might take her choice either to reclaim her money with interest or to affirm the investment and take the land with its increased value. She cannot equitably be entitled to both. She has received the interest on her money up to the time she brought the suit and repudiated the agreement of 1879, and has made no offer to repay or relinquish the money so received. Equity will now give her the principal and nothing more.
Case No. 14,447 is remanded, with instructions to the district court to render a decree that plaintiff is the equitable owner of the two $3000 notes executed by James P. Lodge and Charles V. Lodge in 1895 and of the mortgage given to secure the same, and that neither John F. Williams nor Edward M. Williams nor the heirs of either have any interest in the same; that judgment be rendered in favor of plaintiff against James P. Lodge and Charles V. Lodge for the amount' of $6000, and interest thereon at the rate of six per cent, per annum from the commencement of the suit, the judgment to bear six per cent, interest till paid, and for costs; that the mortgage given to secure the payment of the notes be foreclosed and plaintiff adjudged to have a lien, subject only to the mortgage for $12,000 and interest held by the National Life-insurance Company on the land covered by its mortgage, and a first lien upon the other tract of 160 acres; that said lands be sold and the proceeds applied as above indicated.
The costs in case No. 14,290 in this court will be taxed against the plaintiff in error, and in case No. 14,447 against James P. Lodge and Charles V. Lodge, defendants in error.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
Joseph Gerdom and Anna Gerdom sued the defendant, a fraternal society, upon a beneficiary certificate issued on August 26, 1890, to John B. Gerdom, one of its members, and containing the following recital:
“Neighbor John B. Gerdom ... is, while in good standing in this fraternity, entitled to participate in its benefit fund to an amount not to exceed $2000, which shall be paid at his death to his father and mother, Joseph and Anna Gerdom, equally.”
The petition, which was filed on March 16, 1904, alleged, among other things, that on August 15, 1895, John B. Gerdom left his father’s house in the city of Topeka, Kan., which was his home, and started for the state of California; that he sent letters home to his father and the family until December, 1895, when nothing more was heard from him; that in August, 1896, Joseph Gerdom sent letters of inquiry to California and received an answer from an employer of John B. Gerdom that the last information received concerning him was in May, 1896; that plaintiffs had made diligent search for their son, but had been unable to find him or to hear of -him since the date last mentioned. In view of these facts the petition asserted that John B. Gerdom died on or about May 31, 1903.
At the trial the defendant demurred to the plaintiffs’ evidence. After an adverse ruling it elected to stand upon its demurrer, and from a judgment in favor of the plaintiffs it prosecutes error. The principal questions argued relate to the sufficiency of the evidence to establish the death of John B. Gerdom, to the identity of the beneficiaries under the certificate, and to the insurable interest of the plaintiffs in the life of the assured, it being admitted that Joseph Gerdom is in fact the stepfather of John B. Gerdom.
For the purpose of establishing the fact that they had made proof of loss according to the requirements of the society, the plaintiffs introduced in evidence certain letters which had formed a part of the proof of loss submitted to the society before the action was commenced. These letters purport to have been written by John B. Gerdom to his sister, his “folks” and “friends,” from Denver, Colo., and from Oakland, Cal. The earlier ones from California express a desire to come home, and ask that money be sent to him for that purpose. Later ones indicate that he obtained satisfactory employment in the Tribune office at Oakland. All of them give personal accounts of himself and express interest in the welfare of the persons to whom he wrote. The last one, which was dated at Oakland, Cal., on December 15, 1895, states that he is in good health, and indicates an intention to remain there for a while, because, as he says, the more he looks around the more he likes it.
In connection with the same branch of the case, a letter from the publishers and proprietors of the Oakland Tribune, dated August 28, 1896, and addressed to the plaintiff Joseph Gerdom, was introduced. This letter purports to reply to an inquiry relating to John B. Gerdom, states that he left the employ of the Tribune in February, 1896, but remained in Oakland for some time afterward, when he went first to Stockton and then to Merced, Cal., and that he left the last-named place with the statement that he was going back to Kansas City.
When these letters were admitted in evidence it was understood by court and counsel that they were offered as a part of the proof of loss. After they had been read the court made the following statement to counsel, and asked the following questions of Joseph Gerdom, who was then on the witness-stand:
“The court: I am not sure whether this proof, in relation to these letters that have been introduced in evidence as being a part of the proof of loss — whether they can be used for the purpose of proving another fact or not, and, therefore, I want to inquire about that, so there will be no question about it. Did you hear anything from your son except as appears in these letters? Ans. Not a word; no.
“The court: Had any information at all? A. No, sir; not at all.”
Further evidence disclosed that two brothers and a sister of John B. Gerdom were living in Topeka at the time of the trial. The remainder of the plaintiffs’ proof consisted of evidence that John B. Gerdom was a single man, and that the defendant itself had advertised for him widely and unsuccessfully, after the suit had been commenced.
It is plain that the court could not, over seasonable objection, rightfully consider the letters referred to except for the single purpose of ascertaining if the preliminary steps had been taken to fix the defendant's liability. (Commercial Travelers v. Barnes, ante, p. 293.) But there is fair ground upon which to contend that the court did disclose a purpose to consider the letters and their contents, at least as a starting-point in the evidence upon the main issue, and that counsel for the defendant interposed no objection to the court’s so doing. The matter is by no means clear, but for the purposes of this decision the record will be so interpreted. But, after making this concession, the court is unable to discover in the record sufficient evidence to support the allegations of the petition.
From the foregoing statement it is apparent that the substantial question under the pleadings and the evidence is, not if there is some evidence of death, but if those facts are established which the law insists must be proved in order to overcome the presumption of continued life. It is true that death may be proved by circumstantial evidence, and that absence for a considerable period of time is not indispensable in order to generate a satisfying conviction of the fact. (13 Cyc. 290, title “Death.”) But in all such instances the death of the absent party must fairly be demonstrated by the circumstances of the disappearance. If, for example, in connection with other facts showing a want of motive for absence it should appear that the missing person was on a vessel which foundered, or a train which was wrecked, or engaged in some hazardous enterprise, or met with an accident which might be expected to result fatally, or was exposed to perils incompatible with his age or the state of his health, or was afflicted with a fatal disease, or was mentally infirm, or was suicidally inclined, belief in the fact of death might be forced upon the mind very soon after the disappearance. And in some cases the age, health, disposition, moral character, domestic relations, social rank and financial condition of one who suddenly disappears may themselves, without the aid of other circumstances, stifle all doubt that the person is dead. Such at least is the view of most of the courts of last resort, although the supreme court of Louisiana, in a case of absence apparently quite inexplicable except upon the assumption of death, very prudently observes:
“Disappearances such as his are not, unfortunately, of rare occurrence. Like instances are numerous; men apparently as happy in their domestic relations as he was, who in social position, in wealth, in the success of gratified ambition, were his equals, have been known to leave everything which is commonly looked upon as making life dear, to wander off among strangers and perils, and bury themselves for years, without leaving a trace behind them, in places and among people who were strange, and_, it would be thought, repulsive to their tastes, their habits, and repugnant to those principles of honor and virtue which are the foundations of an honest domestic society.” (Succession of George Charles William Vogel, 16 La. Ann. 139, 79 Am. Dec. 571.)
But in all the cases enumerated lapse of time is in a measure a subsidiary matter. There must be a sufficient opportunity for investigation and search, and after the expiration of a period ample for those purposes further lapse of time without tidings may confirm the inference of death. But the strength of the induction of death lies in the cogency of the circumstances of the disappearance, and not in the fact of absence long protracted.
No doubt considerations of this character impelled the attorneys for the plaintiffs to allege that the death of the assured occurred at the end of a period of seven years’ unexplained absence, and hence at a time and place and under circumstances unknown to the plaintiffs and undiscoverable by them; and doubtless for the same reason no attempt was made to prove death as a fact. There is no suggestion in the evidence of any casualty occurring, or of any peril encountered, or of any paradox in the disappearance. On the other hand, when last heard of the missing party was a young, unmarried man, in good health, with the wander-lure upon him, trying his fortunes in a distant state, able to make his own way in the world, but whose circumstances had become such, or whose disposition toward his relatives had so far changed during his absence from home, that he no longer advised them, as he had been in the habit of doing, of changes in his affairs, of his plans, and of his movements from town to town. As to him the presumption of life continued, and a finding of death, except under the rules hereafter to be stated, would have contradicted both the pleading and the evidence.
In order that the presumption of life may be overcome by the presumption of death there must be evidence, not merely of absence from home or place of residence for the period of seven years, but there must be a lack of information concerning the absentee on the part of those likely to hear from him, after dili gent inquiry. Greenleaf makes the following statement of the rule:
“Among the circumstances material to this issue are, the age of the party, his situation, habits, employment, state of health, physical constitution; the place or climate of the country whither he went, and whether he went by sea or land; the facilities of communication between that country and his former home; his habits of correspondence with his relatives; the terms of intercourse on which he lived with them; in short, any circumstances tending to aid the jury in finding the fact of life or death. There must also be evidence of diligent inquiry at the place of the person’s last residence in this country, and among his relatives, and any others who probably would have heard of him, if living; and also at the place of his fixed foreign residence, if he was known to have had any.” (2 Greenl. Ev. [Lewis’s ed.] §278.)
Other law-books make similar statements. It is conceived, however, that the character of the inquiry, the persons of whom it must be made and the place or places where it must be made are all to be determined by the circumstances of the case, with the obligation always upon the person who is to derive a benefit from the death-' of the absentee to exclude by the best evidence and with as much certainty as possible reasonable belief that he continues to live.
The social aspects of our civilization have been almost revolutionized since the presumption based upon the fact of seven years’ unexplained absence was adopted. The improbability that accident, injury, sickness or death could overtake John B. Gerdom without information of the fact reaching his family and friends is very great. He scarcely could fail to find assistance in case of need among members of his own fraternity. Hospital provision is now made almost everywhere for the relief of the sick and injured, and careful records of all cases are usually kept, including information concerning the patient himself and the circumstances necessitating his detention. Police and other court records, records of coroners’ inquests, records of burial, and other criminal, casualty and mortuary statistics, collected and preserved in every well-populated state, make it difficult for any interested person to be ignorant of the facts to which they relate. The press gives daily attention to the' publication throughout the country of news relating to accidents and crimes wherever they occur. The people generally are alert and well informed. Those of different sections of the country are intimate with each other, and the means of communication between even remote parts is easy, safe, and speedy. This'being true, the presumption of death from absence cannot have the strong probability of fact as its basis which formerly supported it, and persons who for their own profit assume the burden of establishing in courts of justice that the death of an individual has occurred have little excuse for urging their own isolated ignorance of his fate or his whereabouts as the principal item of their proof.
Even under the rule as stated above, it was incumbent upon Joseph and Anna Gerdom to make a quest for tidings of their son among his former intimate friends in Topeka, if he had any; and certainly some inquiry of those officers or members of his lodge with whom he might have communicated concerning his dues or standing should have been made. All those persons who in the ordinary course of events would likely receive tidings if the party were alive, whether members of his family or not, should be interrogated, and the result of the inquiry should be given in evidence, or the testimony of the parties themselves should be produced at the trial. (Hitz v. Ahlgren, 170 Ill. 60, 48 N. E. 1068. See, also, 13 Cyc. 301.) Any word received by any one who might naturally be expected to hear at any time within the seven-year period destroys the presumption of death, and unless the resources of this field of information have been exhausted an allegation of death cannot successfully be sustained. In this case Joseph Gerdom was the only witness produced to prove want of intelligence from the absentee at his former place of residence, and he spoke for himself alone. His coplaintiff, the young man’s mother, and his brothers and sister, were not called. So far as the record shows John B. Gerdom may have continued to correspond with his sister for a number of years after leaving Oakland, and may even be in correspondence with her now; and this want of diligence on the part of the plaintiffs themselves in proving due inquiry could not be compensated by the defendant’s advertisement.
But it is further to be observed that the evidence does not by any means exclude the idea that John B. Gerdom may have concluded to change his domicil. There is nothing to indicate that a purpose to return was bound up with his leaving, and his last word to his family was that he intended to stay in California, at least for some time, because he liked it there. Under these circumstances it was the clear duty of the plaintiffs to seek for information at the place where it was likely to be obtained. Indeed, their own instincts prompted them to do this, and the law cannot be satisfied with any less diligence.
“Where a person has left his home or place of residence and has neither been heard of nor from for a period of seven years, he may be presumed to be dead; but to raise this presumption there must be some proof of inquiry of the persons and at the places where news of him, if living, would most probably be had.” (Posey v. Hanson, 10 App. Cas. [D. C.] 496.)
(See, also, 13 Cyc. 301e.)
And when the plaintiffs learned that their son had gone to Stockton and then to Merced, and had in contemplation a trip to Kansas City, their investigation should have been extended accordingly. Facts which are sufficient to put an interested party upon inquiry will constitute information regarding the existence of the absent one unless duly tested, and until reasonable effort has been expended to exhaust all patent sources of information, and all others which the circumstances of the case may suggest, it cannot truthfully be asserted that diligent inquiry has been made. From what has been said it is apparent that the case is not one which may be disposed of on the ground that there is some evidence to support the court’s finding. Definite measures which the plaintiffs were required to take were neglected. Facts indispensable to the presumption of death are absent. Without the aid of the presumption the allegation of death is unproved. Therefore, the demurrer to the evidence ought to have been sustained.
The evidence creates no uncertainty in respect to who the beneficiaries of the certificate sued upon may be. Joseph and Anna Gerdom are plainly the persons for whose benefit the contract was made.
The question of insurable interest is not involved in the case. The insured himself contracted directly with the insurer before the statute regulating the subject was enacted, and hence might lawfully designate as his beneficiary any one whom he saw fit to name. (3 A. & E. Encycl. of L. 959.)
The judgment of the district court is reversed, and the cause remanded for a new trial.
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The opinion of the court was delivered by
Mason, J.:
This is an original proceeding brought to try the title to the office of mayor of the city of Olathe. The plaintiff and defendant were opposing candidates for that office at the last city election. The official canvass gave the defendant a majority of 126. He received the certificate of election, qualified, and is now acting as mayor. The plaintiff claims that a majority of the legal ballots were cast for him and that he is entitled to the office.
The defendant was an independent nominee. The plaintiff’s name appeared upon a ticket printed upon the official ballot under the designation “city ticket,” which bore no party emblem but at the head of which was placed a circle, under the words: “For a straight ticket, make a cross-mark in the circle below, and not elsewhere on the ballot.” Some 252 ballots were cast having a cross-mark in this circle, and no other mark upon them. In the first and third wards such ballots were counted. In the second ward, where they numbered 126, they were rejected. If these ballots were void the plaintiff’s case must fail. Otherwise the result depends upon a recount of 204 ballots, to each of which some specific objection is made by one party or the other.
The general objection made to the counting of ballots marked only in the circle over what was designated as the “city ticket” is that this ticket was selected, certified and printed under such circumstances that it could not be treated as a party ticket; that the candidates composing it were not entitled to the privilege of being voted for collectively, but that the voter could only effectively give them his support by marking crosses in the squares opposite their several names. Three specific grounds are urged in support of this objection: (1) That under the statute only a political party having a national or state organization has a right to nominate candidates otherwise than by petition, or to use a circle in connection with a party ticket; that, as the framers of this ticket made no pretense to having more than a local organization, they had no such right. (2) That the ticket was not that of any political party whatever, and for that reason could not be voted for as a whole by means of a cross-mark placed in a circle. (3) That a circle can be employed only in connection with a party emblem, and, as no emblem was printed on this ticket, the circle could not rightfully be used. These contentions will be considered in the order stated.
•The plaintiff concedes that he was not the nominee of a political party having a national or state organization, but claims that in a city election all the privileges of any political party, including the use of the circle in voting, may be exercised by one having merely a local organization, under the provisions of section 2696 of the General Statutes of 1901 (Laws 1901, ch. 177, §1), which reads:
“All nominations made by political parties shall be known and designated as ‘party nominations,’ and the certificates by which such nominations are certified shall be known and designated as ‘party certificates of nomination.’ Party nominations of candidates for public office can be made only by a delegate or mass convention, primary election or caucus of qualified voters belonging to one political party having a national or state organization; provided, that party nominations for city officers may be made by a convention, primary election or caucus of qualified electors belonging to a political party having only a local organization. Party nominations so made shall, subject to the provisions of this act, be placed upon the official ballot.”
The defendant relies upon this language of the next section (Laws 1901, ch. 177, § 2; Gen. Stat. 1901, § 2697) :
“Any political party having a state or national organization, by means of a delegate or mass convention, primary election, or caucus of qualified voters belonging to such party, may, for the state or municipality, or any lawfully organized portion of either, for which such convention, primary election or caucus is held, nominate one person for each office that is to be filled therein at the next ensuing election, and, subject to the provisions of this act, file a certificate of such nominations so made.”
In his brief the defendant says:
“While it is provided by section 1 [Gen. Stat. 1901, § 2696] that a local political party may make party nominations, and under this law it might use the party name to designate its ticket, yet such ticket could only be placed on the official ballot by petition, and would not then be entitled to use either a party emblem or a circle. In other words, the law does not require official notice to be taken of such local political parties, and they are not entitled to the privileges which the law specifically gives to political parties having a state or national organization. A political party having only a local organization cannot file a certificate of nomination.”
To this we cannot agree. It is true that section 2697 does not in terms refer to political parties having only a local organization, and its language taken alone might seem to exclude them. But this section must be read in connection with the preceding one, which is a part of the same act. The proviso of that section relating to local political parties plainly contemplates their making nominations for city officers by convention, primary election, or caucus, and using “party certificates of nomination.” It must be taken to qualify the language of section 2697, and to make the terms “political parties,” “party nominations,” “party certificates,” “party names” and kindred expressions wherever found in the act apply to local political parties as well as to those having a national or state or ganization, so far as relates to city elections, except where the context forbids this construction.
Under the second specification noted the defendant contends that the findings made by the commissioner by whom the evidence has been taken show that the so-called “city ticket” was not nominated by any political party whatever, even by one having only a local organization. It appears that in former years there had been in Olathe a local organization known as the “citizens’ party,” which usually presented a ticket at the city election. This year the city central committees of that party and of the republican party, in response to a suggestion made for the purpose of promoting harmony in municipal matters, united in calling a mass-meeting to nominate candidates for city offices. A meeting was held pursuant to this call, which was participated in by voters who were members of various political parties. At this meeting a full set of candidates for city offices was named, the plaintiff being nominated for mayor. It ■ was then voted that the ticket thus formed should be designated as the “city ticket,” and a committee was appointed to have general charge of the campaign. No resolutions were presented and no platform was adopted, but speeches were made, as disclosed by the evidence, to the effect that the purpose of the participants was to eliminate partizan politics from the city government. Previous to this time there had been no party in Olathe known as the “city party.”
The contention of the defendant is that these considerations affirmatively establish that the ticket in question was not that of a political party within the meaning of the statute. Of the cases cited in support of this position several have but little, if any, relevancy, because they turn upon the conflicting claims of rival organizations to the use of the same party name. Two of them, however, namely, Certificates of Nominations of McKinley-Citizens’ Party, 6 Pa. Dist. Rep. 109, and Nomination of Jeffries, Nomination of Rendall et al., 9 Pa. Dist. Rep. 663, contain expressions favoring the defendant’s contention. In the syllabus of the former case it was said:
“A political party is a body of electors having distinctive aims and purposes, and united in opposition to other bodies of electors in the community within which it exists. A body of electors coming together for a single object, and with no continuity of aim or policy, is not authorized to file certificates of nomination, though it in fact polled at the last preceding election over two per cent, of the largest entire vote for any office cast in the state.”
In the latter case the syllabus reads:
“There may be the prescribed number of votes cast at a preceding election to constitute -the aggregation of voters a political party, but if the body does not also avow or proclaim a dogma or doctrine which invites support from the community at large, and not a section or fragment of it, and which is necessarily antagonistic to the tenets of recognized organizations or some of them, it cannot be a political party according to the legislative intent. And a party comes within this definition, and not entitled to a column on the official ballot, which is made up of several cooperating elements, which ordained no creed, adopted no platform, issued no declaration of principles, promulgated no fellowship of opinion or purpose in respect to public affairs, or in opposition to the well-defined principles of established parties, and to become a member of which no abnegation of faith nor absolution of allegiance from existing parties is required.”
The force of these decisions as applied to the present question is at least seriously impaired by the provision of the Kansas statute, already discussed, giving merely local organizations a political status in city matters. But the essential doctrine upon which they are based has later been repudiated by the court of last resort in Pennsylvania. In Independence Party Nomination, 208 Pa. St. 108, 112, 57 Atl. 344, it was said:
“Every elector, as already said, has the right to express his individual will in his own way, and for his own reasons, which are not open to question, however unsound and unimportant others may deem them. And the rights of electors acting together as a party are equally beyond question. The electors themselves are the only tribunal to decide whether the principles, platform, aim, or method of reaching the desired object, are broad enough, permanent enough or important enough to be the basis of united action as a party; and, if they so decide, courts must recognize and treat them accordingly. . . . What the bond shall be which holds the combination together is exclusively within its own determination. It may be different principles from those of other political parties, a different object, or the same object by different means. These and all similar matters are outside the jurisdiction of the courts and rest exclusively on the will of the individual electors. The objection, therefore, made in the court below that the independence party claim to be still democrats on national issues is not one with which the court has any concern.”
To the same general effect see Davidson v. Hanson, 87 Minn. 211, 92 N. W. 93; Baker v. Scott, 4 Idaho, 596, 43 Pac. 76; Roller v. Truesdale, 26 Ohio St. 586.
Our statute formerly required that for a political party to be recognized as such it must have cast not less than five per cent, of the total vote at the preceding election. But the section containing this provision (Laws 1897, ch. 129, § 4) was repealed, and replaced by section 2 of chapter 177 of the Laws of 1901 (Gen. Stat. 190i; § 2697),. which omits this requirement. The fact that the collection of voters calling themselves the “city party” had not previously cooperated in politics was, therefore, not fatal to their pretensions to a place upon the official ballot. It can hardly be thought that the common purpose by which they were actuated might not be indicated by the character of the speeches made at their meeting, or by other means, even although no formal platform was adopted. The doctrine that partizan politics should be kept out of the city government — that is, that voters in city matters should not align themselves in accordance with their beliefs upon questions affecting the administration of state and national affairs — appears to be a sufficient basis for the union of voters favoring that theory; and no reason is apparent under our statute why they might not acquire by organization the right to be classed as a political party in matters relating to city elections. But the questions thus suggested need not be decided. We prefer to rest the determination of this matter upon another ground. Section 2703 of the General Statutes of 1901 provides:
“The certificate of nomination and nomination papers being so filed, and being in apparent conformity with this act, shall be deemed to be valid, unless objection thereto is duly made in writing within three days from the date said papers are filed with the proper officers. . . . Objections or questions arising in the case of nominations for city or incorporated town officers shall be considered by the mayor and clerk, with whom one councilman, chosen by a majority of the councilmen, shall act; and the decision of a majority of such officers shall be final.”
In this case a certificate of nomination was filed with the city clerk purporting to be that of a political party called the “city party.” Whether such a party really existed, and whether it was entitled to have its ticket appear upon the official ballot under that head and in connection with a circle by means of which an elector could indicate his choice for all the names thereon by making a single cross, were questions of fact that obviously might have been raised by objections duly filed and heard and decided by the tribunal provided by law for that purpose. No exception to the certificate having been taken before the election, by the method for which the law makes express provision, it is too late after the votes have been cast to take advantage of any such defect as that here alleged by an objection to the counting of the ballots. Under similar statutes the authorities are substantially unanimous in upholding this position. (See 15 Cyc. 339, 340, and cases cited, especially in note 74; Blackmer v. Hildreth, 181 Mass. 29, 63 N. E. 14; Earl v. Lewis, 28 Utah, 116, 77 Pac. 237.)
Upon this branch of the case it remains only to consider the effect of the omission of a party emblem from the ballot. In section 2699 of the General Statutes of 1901 it is provided that “party certificates of nomination shall contain and show, by a representation thereof, some simple device or emblem to designate and distinguish the candidates of the political party making the nominations.” In this case the certificate of nomination failed to show a party emblem, and consequently none was printed upon the ticket. It may well be argued that this defect was waived by the failure to make timely objection to the certificate, inasmuch as it originated there, although it showed upon the face of the document, which, therefore, was not fully in “apparent conformity” with the statute. In Allen v. Burrow, 69 Kan. 812, 818, 77 Pac. 555, the tribunal created to consider objections to certificates of nomination was said to be competent to pass upon a question of the form of a certificate. In Blackmer v. Hildreth, 181 Mass. 29, and Earl v. Lewis, 28 Utah, 116, under statutes similar to ours, it was said that even the failure to file the certificate within the time limit fixed by law is a matter for the consideration of such tribunal.
But. we do not care to place the decision of this matter upon such narrow ground. In Boyd v. Mills, 53 Kan. 594, 37 Pac. 16, 25 L. R. A. 486, 42 Am. St. Rep. 306, it was held that where the colored sample ballots were by mistake used for voting by all the voters at one polling-place the ballots should nevertheless be counted. The present case is within the spirit of that decision. It is true that there has been a change in the phraseology of the law since that opinion was written. The statute then read: “None but ballots provided in accordance with the provisions of this act shall be counted.” (Laws 1893, ch. 78, §25.) This has been held to mean that the voters may not use ballots of their own choosing, but only those furnished to them by the proper officials. (State of Iowa v. Bernholtz et al., 106 Iowa, 157, 76 N. W. 662.) The corresponding part of our present statute reads: “No ballots other than those provided, printed and indorsed in accordance with the provisions of this act shall be delivered to a voter, deposited in the ballot-box, or counted.” (Laws 1901, ch. 177, § 11; Laws 1903, ch. 228, §4; Laws 1905, ch. 222, §3.) Just what change in the policy of the law was intended to be accomplished by the additional words employed in the later statute need not now be determined. It cannot reasonably be believed, however, that it was the intention of the legislature that any slight departure from the strict letter of the law in the preparation or printing of the ballots should disfranchise the voters of an entire community.
The courts of England and Australia have given a very technical construction to statutes of this character. The’ supreme court of Montana originally followed their lead in this respect, upon the principle that in adopting a foreign statute the legislature was to be deemed to have adopted also the interpretation already given it by the courts of the country from which it was borrowed. (Price v. Lush, 10 Mont. 61, 24 Pac. 749, 9 L. R. A. 467.) Later, however, yielding to the argument that restrictions upon the electoral franchise should be employed with more caution in this country than under other forms of government, the court disapproved this case, and after a very thorough review of the American decisions reached the conclusion that an election otherwise legally and fairly conducted was not to be invalidated by reason of an irregularity in the preparation of the ballot. (Stackpole v. Hallahan, 16 Mont. 40, 40 Pac. 80, 28 L. R. A. 502.) This is unquestionably in accordance with the great weight of authority in the United States. (See the cases already cited, especially Blackmer v. Hildreth, 181 Mass. 29, and Earl v. Lewis, 28 Utah, 116.)
The purpose of placing a party emblem upon the official ballot is obviously to enable the adherents of the party quickly, easily and surely to identify the ticket. The omission of the emblem from the “city ticket,” under the circumstances here present, could not possibly have worked any prejudice to its opponents. (Jones v. State, ex rel., 153 Ind. 440, 55 N. E. 229.) Such omission, however important it might have been if pointed out upon an objection to the certificate of nomination, affords no ground for rejecting the ballots cast at the election.
A question preliminary to the examination of the 204 ballots which ate protested for special'reasons is raised by the defendant. After the election returns had been opened and examined before the commissioner, these particular ballots were separated from the others, classified, and by the consent of both parties transmitted to this court by the commissioner for the purpose of enabling them to be used upon the hearing of the case, it being found impracticable to write such a description of them as would exhibit the precise character of their markings. They came into the custody of the clerk of this court unsealed, and were by him placed in that condition among the papers in the case. Later the plaintiff’s attorneys obtained these ballots from the clerk, took them to a table in the clerk’s office, and there spent some time in their examination.
The defendant claims that these ballots, from having been for a considerable interval in the hands of persons having an interest in the litigation, have lost their character as evidence and should be ignored. The argument is made that the legislature has been at great pains to prevent the possibility of any tampering with the returns of an election, especially by providing that the ballots shall be opened only in the event of a contest, and then in open court, or in an open session of the body trying the contest, and in the presence of the officer in whose custody they are (Laws 1903, ch. 228, § 4) ; that these precautions are rendered wholly unavailing if, after the ballots are opened, they may be placed on file in a public office unsealed, and there handled by interested persons without official supervision. The fallacy of this reasoning is apparent. It is obvious that until the ballots are opened, examined and counted it is imperative that the greatest care possible be taken to guard against any opportunity for changing them. But when they have been once subjected to a critical inspection, and especially when they have become a part of the records of a court, there is ordinarily no longer the same reason for extreme precaution in that regard, for, their contents having become known with certainty, there is less room for the suspicion of any subsequent alteration, and their very character as part of the court files is a protection. In the present case, if it had seemed to the commissioner to be desirable, or if either party had requested it, the particular ballots in controversy might properly have been resealed until such time as this court should reopen them. But since that was not done, and the ballots were treated like any other documents on file with the clerk, there was no impropriety whatever in the conduct of the plaintiff’s attorneys already related.
It is urged that in handling these ballots pencil-marks might have been made by accident or design, slight in themselves, but sufficient to vitiate a number of votes. This might be some reason for the ballots’ having been placed under seal, but it is no reason whatever for presuming, in the absence of all proof, that any such marks were in fact made. Papers of the highest importance, any change in which might involve the gravest consequences, are habitually taken from the court files by attorneys, by the consent of the clerk, and kept in their possession for days at a time, with every opportunity for alteration. It has never been suggested that in such cases the authen ticity of the documents is discredited, or that a presumption of fraud on the part of an attorney arises from the most ample opportunity for its exercise.
In this connection it is necessary to notice language in the defendant’s brief to which objection is made. It is said in the brief that the plaintiff’s attorneys “not only had the opportunity of tampering with the ballots, but actually did so.” If by this it was intended to charge that the ballots were in any way changed by the plaintiff’s attorneys, the statement would warrant striking the brief from the files, for there is no shadow of evidence to support such an assertion, and such an attack upon opposing counsel should not be permitted to pass unnoticed. But it was explained in the oral argument by the defendant’s attorneys that they used the expression “to tamper” as an equivalent' for the phrase “to handle without lawful authority,” and the context seems to be consistent with such use of the objectionable phrase in the present instance. This explanation doubtless brings the words quoted within the scope of permissible argument.
But on the next page of the defendant’s brief an expression is used, the purport of which need not be here given, to which the court is unable to attach any meaning whatever that does not involve a gratuitous reflec-tion upon the personal character of two of the plaintiff’s attorneys. Attention was called to this language-in the oral argument, and no offer has been made to qualify it or to show that it is capable of any construction other than that suggested. If it was so intended, the defendant’s attorneys by its use forfeited all right to have their brief considered. (Stager v. Harrington, 27 Kan. 414; 3 Encyc. Pl. & Pr. 723, 724.) To have struck the brief from the files and given time for presenting another would have caused delay and inconvenience, and to have ignored it altogether would have deprived the court of the benefit of its contents in solving the disputed questions of law involved. It has therefore been made use of in its present form, but, unless the expression referred to is voluntarily withdrawn or satisfactorily explained, it will by order of the court be erased from the copies of the brief that will remain a part of the public records. It should be added that three of the defendant’s attorneys, A. Smith Devenney, C. L. Randall, and I. 0. Pickering, have filed written disclaimers of any purpose on their part to question the integrity of opposing counsel.
The 204 doubtful ballots have been examined, and those to which no valid objection appears have been counted. Some of thé ballots accepted by the election boards have been rejected here, and in a smaller number of cases ballots which the boards classed as void on account of defective marking have been held to be sufficient. In this recanvass, wherever the voter has apparently attempted in good faith to comply with the statute by making simple cross-marks in the proper squares, effect has been given to his intention as so expressed, even although some departure from symmetry and regularity is shown; for instance, where a pencil-mark is made double for a part of its length, or for all of it, in an evident attempt to make it plainer, or where accidental hooks or curves appear at the ends of the lines, caused by carelessness in removing the pencil. Irregularities of this character, being incapable of accurate description, and not being adapted to use as a means for the subsequent identification of the ballot, are not considered destructive of the voter’s purpose.
Ballots have been rejected for the following causes: i(l) The use of a blue' or purple pencil in max-king. '(2) The placing in any square of a cross one of the arms of which is distinctly and purposely paralleled by a third line, forming such a figure as this: (Wheeler v. Caldwell, 68 Kan. 776, 74 Pac. 1031.) (3) The placing in any square or circle of a distinct third line in addition to the two forming the cross, although not parallel to either, forming such a figure as this: (4) The placing in any square or circle of a single line, not crossed by another. (5) The placing in any square or circle of a nondescript character which shows no attempt at forming a simple cross. (6) The placing of a cross outside of any square or circle. (7) The placing of a cross in-a square in the blank column opposite which no name is written. (8) The defacing of the ticket by apparent attempts at erasing marks already made. (9) The placing of a cross in the circle and also a cross in one of the squares in the same column but not in all of them. (10) The placing of a cross in the circle and also a cross in a square of some other column. (11) The placing of crosses in the squares opposite the names of two candidates for the same office. (12) The writing in the blank column of a name which is already printed on the ballot as that of a candidate for the office indicated. (13) The writing of a name in the blank column without placing a cross in the corresponding square. (14) The writing of a name on the ballot elsewhere than in the blank column. (The law in respect to Nos. 9, 10 and 11 has been changed by chapter 222 of the Laws of 1905.)
For a collection of recent cases upon the defective markings of ballots under the Australian-ballot law, see volume 15 of the Cyclopedia of Law and Procedure, pages 352-362.
A recount of these ballots in connection with those to which no exception is taken, conducted under the rules indicated, gives the plaintiff 595 votes and the defendant-576. Judgment is accordingly rendered for the plaintiff.
All the Justices concurring. | [
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Per Curiam:
E. E. Cummings, while riding upon a street-car in the city of Wichita, thrust his head out of the side of the car, which brought it in contact with one of the poles that supported the electric wires overhead. ■ The defendant company prosecutes this proceeding to reverse a judgment obtained by him for injuries resulting therefrom.
The car upon which Cummings was riding was a summer car. ' It was open on both sides, except that on the side next to the poles which supported the overhead wires there was a guard-rail, about level with the back of the seats. The seats were reversible, except those at the ends of the car. The plaintiff occupied the seat in the front of the car, with his back to the motor-man. Facing Cummings, and two seats from him, was a Miss Torrey, an acquaintance. While the car was moving she indicated that she wished to speak to plaintiff. For the purpose of ascertaining her wishes the plaintiff arose from his seat and put his head and a portion of his body outside of the car, over the guard-rail on the side next to the poles, and leaned toward her. While in "this posture the back of his head collided with a pole, and injury resulted. This pole was seventeen inches from the ide of the car; and, in view of the special findings of he jury, the question of the negligence of the company m placing the pole in too close proximity to the side of fhe car becomes unimportant.
If the plaintiff’s contributory negligence was the proximate, although not the only, cause of his injury, he cannot recover. Upon this question the jury, among others, made the following special findings:
“(2) Ques. What was the distance in inches between the side of the car upon which plaintiff was riding and the pole between the tracks which came in contact with the plaintiff? Ans. Seventeen inches.
“(3) Q. What was the distance from where plaintiff was sitting to the person with whom he was trying to communicate? A. About eight feet.
“ (4) Q. Could not the plaintiff have as easily •communicated with the person he desired to speak to •on the inside of the car as-on the outside? A. Yes.”
“(6) Q. Was there any necessity for the plaintiff to put his head or body outside of the car on the side <on which he was sitting? A. No.”
“(35) Q. Was there not an aisle running through the center of this car from one end to the other? A. Yes.”
“(37) Q. Was there anything to prevent Cummings from getting up in the aisle and going and ■speaking to the person he wished to speak with? A. No.”
“(44) Q. Did not the plaintiff’s head hit this pole by reason of his rising up out of the said seat and projecting a part of his body outside of the car? A. Yes.”
“(46) Q. Was not the plaintiff injured because of his rising up out of his seat and projecting his shoulders outside of the car? A. Yes.”
“(50) Q. Would an ordinarily prudent man, riding in the car seated as plaintiff was, have put his bead out of the car far enough to come in contact with the pole between the tracks? A. Not under ordinary circumstances.”
These findings are so conclusive of plaintiff’s contributory negligence as to make comment useless.
The judgment is reversed and the cause remanded, with instructions to render judgment for the defendant on the special findings. | [
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The opinion of the court was delivered by
Mason, J.:
Soranus L. Bretton died testate in Illinois in 1881. The will was duly probated in the county court of Rock Island county, Illinois, and the two persons whom it named as executors were appointed and qualified as such. These executors then represented to the probate court of Cowley county, Kansas, that at the time of his death the testator owned certain real and personal property in that county, and asked that the will be there admitted to probate and that they be granted letters testamentary that they might proceed in the management of the part of the estate found in Kansas. An order was made admitting the will to record upon the strength of its having been approved by the Illinois court, and letters testamentary were granted to the executors, who gave the bond and took the oath required by the Kansas statute and entered upon the performance of their duties in this state. In 1883 they filed in the Cowley county probate court a petition for leave to sell real estate situated in that county for the payment of debts. Notice of a hearing thereon was properly given, and an order was made authorizing the executors to sell certain tracts of land for that purpose at private sale. A number of tracts were accordingly sold, the sales were confirmed, and deeds were executed. On June 3, 1886, the court ordered that no more of the real estate should be sold until a reappraisement should b¿ made and until the court should direct further proceedings under the order of sale already made.
For more than twelve years nothing further was done to subject the real estate remaining unsold to the payment of debts. On August 30, 1898, Burton F. Peek made a showing in the probate court of Cowley county that the Illinois court having jurisdiction of the Bretton estate had appointed him administrator de bonis non with the will annexed, on account of one executor’s having died and the other’s having refused to act and being disqualified by non-residence in Illinois. He asked the Kansas court to make an order recognizing him as such administrator, with authority to sell real estate in the manner prescribed by law. An order was accordingly made recognizing him as such administrator, confirming his appointment by the Illinois court, and approving the bond which had been there given.
This administrator then presented an application to the Cowley county probate court representing that an indebtedness against the estate remained unpaid, reciting that the order of sale made fifteen years before was still in force, and asking that appraisers be appointed to appraise enough real estate to satisfy such debt. Appraisers were named, appraisements were had, a tract.of land was sold, the sale was confirmed, a deed was ordered and executed, and the purchaser went into possession. Thereafter several conveyances of the property were made, the last grantees being Grant Stafford and P. H. Albright. In 1902 an action was brought by the Bretton devisees against Stafford and Albright for the recovery of the possession of this land, under the claim that the administrator’s sale was absolutely void and passed no title. They recovered a judgment, from which the defendants prosecute error.
The administrator, Peek, gave no notice of the hearing of the petition presented by him for an order ■authorizing the sale of real estate, and the"sale was obviously void on this account unless the proceedings' taken by him can be regarded as a continuation of those begun by the executors. They were manifestly so considered by him, and so treated by the probate court. The only question that need be determined here is whether the two proceedings were so connected that the jurisdiction to authorize sales of real estate acquired by the probate court in virtue of the notice given by the executors remained with the court so as to warrant the making of an order, without further notice, for the administrator to sell lands covered by the original notice and order.
It is not doubted that an order made upon due notice for the sale of real estate by an executor or administrator is sufficient to authorize a sale by his successor in trust (18 Cyc. 726, 758), but the vital inquiry here is whether for this purpose Peek, the administrator de bonis non, was the successor of the executors who gave the notice and to whom the original order of sale was granted. In the investigation of this question it is necessary to observe carefully the different steps that were taken and the statutory provisions by which they were respectively authorized. In this connection it is first to be noted that there are two separate and distinct methods under our statute by which real property in this state may be sold to satisfy the debts of a non-resident testator. One of them is that provided in sections 7962 to 7965, inclusive, of the General Statutes of 1901. Under this method, when a will has been duly proved in another state, upon the production by the executor or other interested person of an authenticated copy of the will and probate thereof the probate court of any county in this state in which there is property upon which the will may operate may admit it to record. (Section 7963.) Section 7965 reads:
“After allowing and admitting to record a will pursuant to the four preceding sections of this act, the court may grant letters testamentary thereon, or letters of administration with the will annexed, and may proceed in the settlement of the estate that may be found in this state; and the executor taking out leters, or the administrator with the will annexed, shall have the same power to sell and convey the real and personal estate, by virtue of the will or the law, as other executors or administrators with the will annexed shall or may have by law.”
It will be noticed that the section quoted contemplates the actual appointment by a Kansas court of an executor or administrator who shall be subject to the control of that court in all things.
The other method referred to is described in sections 2950 and 2951 of the General Statutes of 1901. Section 2950 reads as follows:
“When an executor or administrator shall be appointed in any other state, territory or foreign country on the estate of any person dying out of the state, and no executor or administrator thereon shall be appointed in this state, the foreign executor or administrator may file an authenticated copy of his appointment in the probate court of any county in which there may be any real estate of the deceased; after which he may be authorized under an order of the court to sell real estate for the payment of debts or legacies and the charges of administration, in the same manner and upon the same terms and conditions as are prescribed in the case of an executor or administrator appointed in this state, except as hereinafter provided.”
Section 2951 provides that if the bond already given by the foreign executor or administrator be found sufficient he shall not be required to give any further security; that otherwise he must give an undertaking properly to account for the proceeds of all sales he may make, according to the laws of the state in which he was appointed. It is to be noticed that these sections do not contemplate the appointment of a Kansas executor or administrator or any appointment in Kansas whatever; they merely relate to the recognition, for the purpose of effecting the sale of real estate situated in Kansas, of an appointment made elsewhere.
In the present case the executors proceeded under the first stated of these two methods. They did not ask that the Kansas court should authorize them to sell real estate in virtue of their having qualified as executors in Illinois. They were appointed as executors for Kansas, amenable to the Kansas courts and the. Kansas laws in all things, and they gave bond and took their oaths as Kansas executors. The circumstance that they had already been appointed execu tors in Illinois is a mere incident. It was not essential to their appointment in Kansas. Indeed, it would appear that, since the statutes of Illinois and of Kansas alike forbid the appointment of a non-resident executor, no one could properly qualify as an executor in both states.
On the other hand, the administrator proceeded under the second method. He did not seek to be, nor was he, appointed as a Kansas administrator. He merely asked to have the appointment that had already been made in Illinois recognized by the Kansas court, so that he might as an Illinois administrator sell Kansas real estate under the supervision of a Kansas court.
As appears by section 2950, supra, this could be done only upon the theory that no executor or administrator had been appointed in Kansas. Executors had been appointed in Kansas. One of them had died. The other, although removed by the Illinois court because he was not a resident of Illinois, may have been still qualified to act in Kansas, so far as the record discloses. In order for the Cowley county probate court to have had jurisdiction to permit the foreign administrator to sell Kansas real estate the executors already appointed must have been disposed of in some way. Perhaps to sustain the acts of the court it may be assumed that the surviving executor had been removed by the Kansas court as well as by that of Illinois, and that the situation therefore became the same, so far as related to sales of real estate by a foreign administrator, as though no executor or administrator had been appointed in Kansas. In that view of the matter the administrator de bonis non, in virtue of his appointment in Illinois, might have been authorized to sell real estate in Kansas “in the same manner and upon the same terms and conditions as are prescribed in the case of an executor or administrator appointed in this state.” But to procure an order for that purpose it was essential that he should give notice. He could not avail himself of the notice given by the ex ecutors fifteen years before, for he was .not their successor in this matter — he did not succeed them in the capacity in which they had acted in giving the notice and obtaining the order of sale. He may have been, and doubtless was, the successor of the executors so far as related to their appointment and qualification in Illinois, but he was not their successor in respect to their appointment and qualification in Kansas. The notice they gave and the order they procured from the Kansas court were solely in virtue of their appointment in Kansas, and, although they chanced to be the same persons to whom letters testamentary had already been issued in Illinois, it does not follow that the person appointed to succeed them there acquired the authority to complete their acts begun in their capacity as Kansas appointees.
The administrator’s deed was therefore void, and constituted no defense to the action of ejectment brought by the owners of the land. The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
This action was for damages alleged to have been sustained by the plaintiffs because of the wrongful and unlawful withholding of real estate by the defendant. The error complained of is predicated on the overruling of the defendant’s demurrer to the plaintiffs’ reply.
S. K. Howe brought an action against the Armour Packing Company and George W. Tourtellot for the possession of the land in controversy, and subsequently, and while that action was pending, he brought another action against the same defendants for damages for the wrongful withholding of the possession of the land. While both of these actions were pending, on July 19, 1900, the Armour Packing Company conveyed whatever interest it had in the lands, and delivered the possession thereof, to the plaintiff in error, who has continued in possession ever since. Some time during the pendency of these actions George S. Howe became interested with S. K. Howe in the real estate, and was joined as a party plaintiff. While both of these actions were pending, on October 2, 1902, the Armour Packing Company and George W. Tourtellot entered into a written agreement of compromise with the plaintiffs, by which the packing company paid to the plaintiffs $1000 in full settlement of all claims that they might have against it for the unlawful entry and wrongful detention of the possession of the land in controversy up to July 19, 1900, and it was also agreed therein that the two cases then pending should be dismissed. This contract was consummated by the payment to the plaintiffs of the amount stipulated to be paid, and the dismissal of both cases. This agreement reads as follows:
“For and in consideration of the sum of one thousand dollars ($1000) paid by check of Frank Hagerman on this date, and for no other consideration, that named being contractual, it is agreed:
“(1) All claims of every kind and character of Simeon K. Howe and George S. Howe against the Ar mour Packing Company and George W. Tourtellot arising out of case No. 15,832, or connected with the land on the Missouri river front or adjacent to the plant of the Armour Packing Company, are hereby settled and discharged, whether specifically enumerated herein or not, and this release shall also include all claims against said Armour Packing Company and George W. Tourtellot of every kind and character respecting the property or its use or occupation, the subject-matter of litigation in the forcible-entry-and-detainer case in the district court of Wyandotte county, Kansas, numbered 15,832, wherein Simeon K. Howe is plaintiff, and the Armour Packing Company and George W. Tourtellot are defendants, and for damages for the detention of said land.
“ (2) This release shall not cover any claim against H. M. Meriwether for damages or rents or for use or occupation since Meriwether’s taking possession of said land, on July 19, 1900, nor affecting any claim of ownership or.any right to the possession of the land as against Meriwether or his assigns, or any claim or claims of the party plaintiff in case No. 15,832, wherein substitution has been made on this date, as against the substituted party, nor shall this release in any manner affect any right which plaintiff may have against said H. M. Meriwether by virtue of the agreement or substitution entered into between Simeon K. Howe and the Armour Packing Company and George W. Tourtellot and H. M. Meriwether on this date.
“(3) Case No. 16,279 in the district court of Wyandotte county, Kansas, wherein Simeon K. Howe is plaintiff and the Armour Packing Company and George >W. Tourtellot are defendants, shall be dismissed at defendants’ cost.
“Witness our hands and seals, this 2d day of October, 1902. (Signed) Simeon K. Howe, (seal.)
George S. Howe. (seal.)”
On October 5, 1904, the Howes commenced this action against Meriwether to recover damages for the wrongful detention of the real estate from July 19, 1900, to the time of the commencement of the action. To the petition the defendant, Meriwether, answered, pleading the commencement of the two actions against the Armour Packing Company and George W. Tour tellot, and the settlement thereof, as a complete satisfaction of all damages to which the plaintiffs might have been entitled, both for the wrongful entry and wrongful detention by the Armour Packing Company and the defendant.
The plaintiffs pleaded in reply the settlement, and, in avoidance of any legal implication that might arise from such settlement which would preclude them from maintaining this action against the defendant, the following agreement, which was made at the same time and as a part of the settlement of the Armour Packing Company and Tourtellot litigation:
“Whereas, on July 19, 1900, the Armour Packing Company deeded to H. M. Meriwether the land in controversy, and defendants delivered possession thereof to him:
“Now, therefore, it is hereby agreed by and between said parties to this action and the said H. M. Meriwether that said H. M. Meriwether shall be substituted in lieu of the original defendants as the defendant in said cause in this court, and, if so desired, as plaintiff in error in any proceedings in error in the supreme court of the state of Kansas, as well as in all subsequent proceedings relating thereto, in place of said original defendants, in all subsequent stages of the controversy respecting the said land, as fully and completely as if all action heretofore taken by said defendant upon which the alleged rights or liabilities of said original defendants are based had been taken by him, and as if the suit had been originally instituted against him instead of against them; and in no event shall the legal rights of said plaintiff, if any, respecting said property or controversy become less by reason of such substitution, but no claim of plaintiff for damages for the taking and deprivation of possession prior and up to July 19, 1900, shall be asserted against said Meriwether.
“This substitution shall stand and be of effect as of date July 19, 1900, and as if it had been then made, that being the date upon which the Armour Packing Company conveyed the said property to said Meriwether and delivered to him possession thereof, and a nunc pro tuno order of substitution may be made as of that date.
“It is further stipulated and agreed by and between all the parties hereto that said H. M. Meriwether shall not in this case have, by virtue of this agreement, any greater or additional or different right respecting the controversy in regard to said land than he or the original defendants herein would have had had no substitution been made.
“Signed in triplicate, this 2d day of October, 1902.
Hutchings & Keplinger, and Moore & Berger,
Attorneys for Simeon K. Howe.
Frank Hagerman,
Attorney for Armour Packing Co. and George W. Tourtellot.
H. M. Meriwether.
“Signature of H. M. Meriwether attested by Frank Hagerman.”
To this reply the court overruled the defendant’s demurrer.
The first contention of the plaintiff in error is that the court should have carried this demurrer back and sustained it to the petition. The only defect suggested in the petition is that it does not show that the plaintiffs had reentered the land after it was wrongfully taken from them by the Armour Packing Company and before this action was commenced. Defendant’s contention seems to be that an action to recover damages for the wrongful detention of real property cannot be maintained unless it be shown that the party against whom the action is prosecuted was the person who actually dispossessed him, or that one who takes possession of real estate by assignment from one who wrongfully dispossessed the owner is not liable in damages to such owner until the owner has repossessed himself of the land. In this we think the learned counsel is in error. An action for damages for wrongfully withholding real property may be maintained against any person so wrongfully withholding, however he may have come into possession, whether the plaintiff ever had actual possession or not, or whether he had been in possession and wrongfully removed by the wrongful possessor’s grantor. The only questions to be determined in such an action are: (1) Is the plaintiff entitled to the actual possession of the real estate? (2) Does the defendant wrongfully withhold the property from him? (3) Has such wrongful possession resulted in damages to the plaintiff?
Another contention of the plaintiff in error is that the compromise between the Armour Packing Company and the plaintiffs in this action was, in legal effect, a full satisfaction of all damages sustained by the plaintiffs for wrongfully removing them from the possession and the wrongful detention by all persons succeeding to the possession through the Armour Packing Company. In disposing of this question, and to show that the compromise between the plaintiffs and the Armour Packing Company did not have such effect, we need only to quote the agreement between all the parties at the time the litigations between the plaintiffs and the Armour Packing Company were settled. In the agreement of compromise between the plaintiffs and the Armour Packing Company there is found this clause:
“This release shall not cover any claim against H. M. Meriwether for damages or rents or for use or occupation since Meriwether’s taking possession of said land, on July 19,' 1900, nor affecting any claim of ownership or any right to the possession of the land as against Meriwether or his assigns, . . . nor shall this release in any manner affect any right which plaintiff may have against said H. M. Meriwether by virtue of the agreement or substitution entered into between Simeon K. Howe and the Armour Packing Company and George W. Tourtellot and H. M. Meriwether on this date.”
It is evident from this that the plaintiffs were not compromising or receiving a consideration for any right of action they had against Meriwether for the wrongful detention of the real estate by him, nor waiving or settling any claim of ownership to the land as against him. Such rights are expressly reserved by the agreement of compromise. The other agreement was between the plaintiffs on the one part and the Armour Packing Company and Meriwether on the other, and, after referring to the deed from the Armour Packing Company to Meriwether for the land, and to the delivery of its possession to. Meriwether on July 19, 1900, and the settlement between the plaintiffs and the Armour Packing Company, reads as follows :
“H. M. Meriwether shall be substituted in lieu of the original defendants as the defendant in said cause in this court, and, if so desired, as plaintiff in error in any proceedings in error in the supreme court of the state of Kansas, as well as in all subsequent proceedings relating thereto, in place of said original defendants, ... as fully and completely as if all action heretofore taken by said defendant upon which the alleged rights or liabilities of said original defendants are based had been taken by him, and as if the suit had been originally instituted against him instead of against them; and in no event shall the legal rights of said plaintiff, if any, respecting said property or controversy become less by reason of such substitution.”
This stipulation was signed in triplicate on' October 2, 1902. By these agreements the plaintiffs expressly reserved to themselves whatever right they previously had to an action against Meriwether for damages for the wrongful detention of this property, and Meriwether consented and agreed that he should stand liable for any damages plaintiffs might have sustained, or might sustain, by his wrongful detention of the property from and after July 19, 1900, the day he went into possession. The present action was brought to recover such damages, and Meriwether, having agreed to be liable therefor, cannot now say that the plaintiffs waived or settled any right of action they had against him growing out of his wrongful possession or detention of the property.
The judgment of the court below is affirmed. | [
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'The opinion of the court was delivered by
Johnston, C. J. :
On July 4, 1901, Armour Combs was celebrating the day by loading and discharging a toy cannon at the junction of two principal streets of Kansas City. As Alfred T. Thompson was about to board a street-car at this junction he was shot in the leg and injured. He brought an action alleging that Combs negligently and wantonly loaded his cannon with powder- and leaden shot and discharged it on a public thoroughfare over which large numbers of people were constantly passing; that the charge of shot from the cannon entered his left leg, seriously wounding him, causing him intense pain, and disabling him from performing labor or from following his usual vocation for a long period of. time. Combs denied these averments and contended that his cannon was not loaded with shot, or with anything except powder and tissue paper. The verdict was in favor of Thompson, awarding him damages in the sum of $200.
Complaint is made that a motion to require Thompson to make his petition more definite and certain was overruled. Among other things, the petition stated that the plaintiff was a strong, healthy man, capable of earning, and did earn, seventy-five dollars per month, and that the injury inflicted rendered him unable to perform his usual work and to follow his usual vocation for a long time. The motion was that Thompson should be required to state what his usual vocation was and the length of time he was unable to follow it by reason of the injury. The court might well have allowed the motion, especially as to the length 'of time plaintiff was disabled from performing work; but looking at the proceedings as given in the record, we do not think that any prejudice resulted from the ruling. There was no surprise on the part of the defendant as to the employment in which Thompson was engaged, nor any difficulty in learning what his earnings were. The principal damage sustained was the pain and suffering resulting from the wound, and the loss of time was only an incident. No special award was made for loss of time, and the total award, #200, does not indicate that a substantial allowance was made for loss of time. The court is invested, with considerable discretion with motions of this character, and as no prejudice appears to have resulted because of the ruling, it cannot be regarded as prejudicial error.
It is strongly urged that the testimony fails to show that the injury sustained was caused by Combs, and, at any rate, that it did not prove that the injury was the result of any negligence on his part. It is argued that no one saw him load the cannon with shot, and he testified positively that he did not, and had no-shot with him. The testimony, however, is that the cannon was pointed directly toward a much-traveled street, and toward the point at which Thompson was standing ; that Combs was engaged in loading and shooting it, and that when it was turned in th'e direction of Thompson and fired he was struck on the leg with the shot, and the paper wadding from the cannon was thrown near him and under the car which he was boarding. Of course, no one traced the shot on its course from the cannon to Thompson, but when asked if he knew that the shot which hit him came from that cannon he said it could not have come from any plac§ else, and for the reason that no other cannon was fired at that time. One witness testified that Combs had something like shot in his hands at the time; that he had cartridges or shot, and he thought it was shot.
From testimony introduced, it cannot be said that there was no evidence tending to show that the injury was inflicted by the discharge of the cannon. Under the evidence and findings, we must infer that shot was used by Combs, and was discharged from the cannon. He probably did not have any intention of shooting Thompson, but the fact that he may not have directed the .cannon toward Thompson or intended to shoot and injure him will not relieve Combs from liability. The injury would not have occurred but for his carelessness. It was a reckless act to discharge a loaded cannon into a public street of the most populous city in the state and to direct it toward a crowd of people who were continuously passing along the street. He put the forces in operation which caused the injury, and whether it was intentionally or only carelessly done, he must respond in damages.
While the testimony of negligence is‘somewhat meager, we think there was enough to take the case to the jury, and to justify a finding that shot was used in loading the cannon, and that the injury was due to the fault of Combs.
There is some criticism of the instructions, but we find nothing in them to justify disturbance of the verdict or to require special comment.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J. :
This was an action to’ recover damages for injuries to Walter F. Anderson, resulting from the alleged negligence of W. P. Pierce, T. A. Pierce, and the city of Salina. .The first trial of the case resulted in a judgment in favor of Anderson, but it was set aside for inconsistencies in the findings of the jury. (Anderson v. Pierce, 62 Kan. 756, 64 Pac. 633.) On the last trial a demurrer to the evidence of Anderson was sustained and judgment given in favor of defendants, and of these rulings plaintiff complains.
If there was testimony tending to show culpable negligence on the part of the defendants, they were liable for the consequent injuries, unless it appeared, beyond dispute, that the injury was the result of contributory negligence of the boy. It was shown that the Pierces were making changes in a building in the city of Salina, and, in doing so, they removed a vault door from the building and placed it on the street. The door was six feet long, three feet wide, and weighed about one thousand pounds. The testimony tended to show that it was placed lengthwise on the sidewalk and inclined against the wall of the building, where it remained, to the knowledge of the officers of the city of Salina, for several days. The front of the door was toward the building, and there was testimony going to show that it rested on the hinges on the bottom of the door, while the top of it was held out from the wall by one of the knobs. According to some of the testimony, the bottom edge of the door was within five inches of the wall, and the hinges on which it rested were still closer. A few days after the door had been placed on the street, Walter Anderson, who was about fourteen years and eight months old, was attracted to the door, and, with the instincts of. a boy, put his hand between the door and the wall in an effort to turn the knob which controls the bolts. In doing so, the door was pushed toward and upon him, crushing his leg.
■ The placing of a heavy door in such an insecure position on one of the principal thoroughfares of the city, and leaving it there for a number of days, tended strongly to prove negligence, not only of the owners, but of the city which permitted it to remain in such condition. Taking the testimony most favorably to plaintiff, as we must, the door was placed so nearly perpendicular and upon a balance that the mere thrusting of a boy’s hand behind it caused it to fall. It was left in this toppling position for a number of days, and constituted not only an obstruction in the streets, but was an object which naturally tempted a boy to play with its locks and tumble its bolts. Other boys had played with the locks and bolts without injury, it is true, and some of the testimony also tended to show that the bottom of the door was out as far as fifteen inches from the wall, while the top of it rested against the wall on a slant that indicated safety. The position of the door, however, is shown quite clearly by the fact that the mere thrusting of a boy’s hand behind it pushed it over. It is difficult to understand how a door weighing a thousand pounds, placed in anything like a secure position, could have been pushed over by the strength of a boy, however exerted.
There was abundant evidence, we think, to show such a want of care upon the part of both the owners and the city as to require the submission of the case to the jury, under proper instructions, unless it can be said, as a matter of law, that the injuries resulted from the'want of care on the part of the boy.
The testimony shows that he was an ordinarily intelligent boy, and he is therefore held to such a standard of care and discretion as is usual in those of his age and experience. There is nothing, however, to show that he was familiar with such dangerous situations, or with things so dangerously placed, and hence some of the cases cited by defendants in error do not fairly apply. Unless attention had been called to the peril of the situation, who would have surmised that a vault door would be left standing on a balance in a toppling position on one of the busy streets of a city ? If men of mature judgment had casually met there, and while in conversation one of them, without special scrutiny, had placed his hand upon or behind the door and thus thrown it upon him, could it have been arbitrarily said that he was bound to know the danger of the situation and that the door had been so negligently placed ? Much less can it be said that a boy fourteen years of age should have examined and known of the peril. Having in mind the difference in capacity and discretion of children of the same age, and the fact that the danger was of such an unusual character, we are imited in the opinion that it cannot be said, as a matter of law, that the boy was guilty of contributory negligence.
As the case comes to us, it appears that the question whether the boy exercised the care and caution re quired. of him was peculiarly one for the determination of a jury, and the ruling of the court in taking the case from the jury cannot be upheld.
The judgment will therefore be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
G-bebne, J. :
The plaintiff brought his action to-recover damages for personal injuries alleged to have been sustained through the negligence of the defendant. The plaintiff was what is commonly known as a meat-trucker in the packing-.house of defendant at Kansas City, Kan. It was his duty to remove meat from the different floors of the building to other-floors. This was done by means of a truck, which was wheeled into an elevator and carried either up or down, as desired. On the day plaintiff sustained his^ injuries tlie elevator was in charge of a meat-trucker, and while plaintiff was being carried on the elevator it dropped, causing the injuries of which he complains.
The substantial allegations of negligence were as follows : That by reason of the fact that said elevator-had been carelessly and negligently abandoned by the regular operator in charge thereof, and was in charge of an inefficient and incompetent workman, who did not know how to operate the same, but let it fall with plaintiff, and of whose incompetency the defendant-knew or by the exercise of reasonable care should have known, or by reason of the defective condition of said elevator, in that the same was not provided with suitable or proper safety appliances to prevent the same from falling to the bottom, as was known or should have' been known to the defendant, such elevator was suddenly precipitated to the bottom of such elevator-shaft while plaintiff was in the same and by reason whereof- he was injured. Defendant’s answer was a general denial and an allegation of contributory negligence.
When the plaintiff had rested his cause the court sustained a demurrer to the evidence and rendered judgment for costs in favor of defendant. To this order and judgment, and the overruling of a motion for a new trial', the plaintiff excepted, and now prosecutes error.
The evidence failed to prove that the elevator was not properly constructed, that it was in a defective condition or wanting in any of the appliances neces: sary properly to control it.
At the timé plaintiff received his injuries Patrick Rady, a meat-trucker, was running the elevator, and according to his own testimony he did not understand how to operate it with safety. ' He testified in substance that all the experience or knowledge he had was derived from operating the elevator from ten to fifteen minutes a day for two or,three weeks previous, 'and what Elbert, the regular elevator man, had taught him; that he had not been taught the use of a reverse lever which, when properly used, would prevent the elevator from going too fast.
On the occasion of plaintiff’s-injuries Elbert had called Rady to nun the elevator while he went on the top to oil its bearings. . While the elevator was going down it became unmanageable and dropped several feet, inflicting injuries to plaintiff, which injuries appear to have been occasioned by the negligence of Elbert in turning the elevator over to an incompetent person. The controlling question in this case is, Were the plaintiff and Elbert fellow servants ? If they were, in the absence of any evidence that the defendant had not exercised reasonable care in the employment of a suitable and competent person to run the elevator, he cannot recover.
Whether two or more persons employed by the same master are- fellow servants is not a question of law exclusively, nor is it entirely a question of fact. When the facts are undisputed, or are fairly proved, it becomes a question of law. In the present case, for the purpose of deciding this question, the facts which the evidence fairly tends to establish will be accepted as proved. Therefore, whether the plaintiff and the other employee metioned were fellow servants is a question of law exclusively. The facts proved that the defendant was a meat-packer, operating in a building seven stories high. Rady and plaintiff were meat-truckers. It was their duty to load trucks with meat and wheel them to this elevator which carried them to the floor desired. Plaintiff knew the elevator was used expressly for this purpose. It was his custom to load a truck with meat, wheel it to the elevator, call to the operator, and direct him to the floor upon which he desired to deposit the meat. The plaintiff knew the elevator was operated by an employee of defendant, and that if such employee was guilty of negligence in operating the elevator while he was in it such negligence might result in injury to him. From the authoxities the following rule may be deduced: Whenever coemployees, under the control of one master, are engaged in the discharge of duties directed to one common end, such duties being so closely related that each employee must know he is exposed to the risk of being injured by the negligence of another, they are fellow servants, and each assumes the risk to which he'is thus exposed. (Northern Pacific Railroad v. Hambly, 154 U. S. 349, 14 Sup. Ct. 983, 38 L. Ed. 1009; Naylor v. New York Cent. & H. R. R. Co., 33 Fed. [C. C.] 801; Bier v. The Jeffersonville, Madison and Indianapolis Railroad Company, 132 Ind. 78, 31 N. E. 471; Railway Company v. Triplett, 54 Ark. 289, 15 S. W. 831, 16 S. W. 266, 11 L. R. A. 773; Baird v. Pettit, 70 Pa. St. 477 ; Quincy Mining Co. v. Kitts, 42 Mich. 34, 3 N. W. 240 ; Fifield v. Northern Railroad, 42 N. H. 225 ; McAndrews v. Burns, 39 N. J. L. 117 ; Ewan v. Lippincott, 47 id. 192, 54 Am. Rep. 148; Valtez v. O. & M. Ry. Co., 85 Ill. 500 ; C. & A. R. R. Co. v. Murphy, 53 id. 336, 5 Am. Rep. 48.)
Plaintiff and the operator of the elevator were engaged in one common pursuit, that of curing and packing meat. Each worked in a different line of employment but was engaged in the same general business and so closely related that the negligence of one was liable to inflict injury to the other. Therefore, he must be held to have assumed the risk of the negligence of his coemployee who ran the elevator.
It is contended that at common law it is the duty of an employer to secure suitable and competent servants ; that the defendant was guilty of actionable negligence in permitting Rady, an incompetent person, to run the elevator. The evidence does not support this contention. There is no evidence tending to show that defendant put Rady in charge of the elevator or knew that he was running it or that he was incompetent. The defendant employed Elbert to run the elevator, and it is not denied that he was fully competent to perform that duty. It was the negligence of Elbert in permitting Rady, an incompetent person, to undertake to run the elevator that resulted in injury to plaintiff. If Elbert had been acting as vice-principal when he turned the elevator over to Rady, under the evidence showing Rady’s incompetency, the defendant might be held liable. There is no contention of this kind.
For the reasons here suggested the demurrer was properly sustained. The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J. :
It will be noticed from the testimony of plaintiff below, set out in the statement, that he and his fellow workmen asserted that the arrangement of the hydraulic jack rendered it unsafe when it was exerting force against the iron beam. They hesitated to go on with the work, but were directed by the foreman to proceed. The foreman knew the forcing capacity of the jack, and the workmen were ignorant of it. It cannot be held that knowledge of plaintiff below of the probable injurious result to him and the risk incurred from an obedience to the foreman’s command was obvious and apparent. (Railway Co. v. Bancord, 66 Kan. 81, 71 Pac. 253.) He was a common workman, without experience in handling such appliances. His expressed fears that more pressure would cause the iron bar to fly out were overcome by the assurance of the foreman of its safety. The two were not on an equal footing. A reliance upon the superior knowledge of the master, under the circumstances, was to be expected. The direction by the foreman to the men to go ahead and work was the best evidence to them then obtainable that the jack was safely adjusted. As to the apprehended danger, the master and servant did not agree. In Harder & Hafer Coal Min. Co. v. Schmidt, 104 Fed. 282, 285, 43 C. C. A. 532, 535, it was said: • .
“Whatever may be the exemption of the employer from liability for injuries caused by a danger that is obvious to the injured, such exemption will not be accorded where the nature of the menace is so uncertain as to cause discussion between the employees and the employer, with the result that the employer dissuades 'the employee of his apprehension ; and especially so where the particular employee injured is without any knowledge of its existence.”
In the circumstances of the present case, there was a difference of opinion between Wurtenberger and the foreman with respect to the danger attendant on a further use of the jack, after the employee had doubted its safety. In view of this disputed question of safety, .it was proper that the jury should determine whether the workman was negligent. (Miller v. Union Pacific Ry., 12 Fed. [C. C.] 600.) It must be remembered that the hydraulic jack was a mechanical device of great dynamic energy, which could not be readily known to a common laborer working with it for the first time. Its capacity and power were known to the foreman of the defendant below.
In Seeds v. Bridge Co., ante, page 522, 75 Pac. 480, a workman was told by a foreman to remain in a dan•gerous place and adjust a rope used for hoisting. He was injured’. The court said :
.“We must further remember that he had just been •hurried to the work, had been .violently chided for too great haste in getting away from this place of danger, had been told to remain there until sure that the fastening was secure, and had been informed by the foreman that he would tell the plaintiff when to get away. All this would have a strong tendency to make the plaintiff less observant of the dangerous surroundings, less critical as to unsafe conditions, and less competent to judge of danger to which he was exposing .himself, growing out of these surroundings and conditions.” (See, also, Stephens v. The Hannibal & St. J. Ry. Co., 96 Mo. 207, 9 S. W. 589, 9 Am. St. Rep. 336.)
Plaintiff below testified that he believed what the foreman told him respecting the safety of the jack. The rule is that if the master orders the servant into a situation of danger, and in obeying the command he is injured, the law will not charge him with contributory negligence, unless the danger was so glaring that no prudent man would have entered into it, even under orders from one having authority over him. The degree of prudence exercised by the plaintiff below was a matter for the consideration of the jury. The demurrer to the evidence ought to have been overruled.
The judgment of the court below will be reversed and a new trial granted.
Johnston, C. J., Cunningham, Greene, Burch,. Mason, and Ateinson, JJ., concurring. | [
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The opinion of the court was delivered by
Smith, J. :
This was an action on a certificate of memership in a fraternal order, the Supreme Court of Honor, held by George C. Updegraff at the time of his death, in October, 1901. The action was brought by defendant in error, wife of the deceased, who was the beneficiary named in the certificate.
The insured came to his death by suicide more than two years after the date of his certificate of membership, which certificate was in effect a policy of life insurance for the sum of $2000, conditioned on the insured’s complying with the constitution, rules and by-laws of the order. The certificate provided that the company should not be liable if the insured should die in violation of section 2, article 10, of the constitution, which was made a part thereof. It reads :
“This order will not pay the benefits of members who commit suicide, whether sane or insane, except it be committed in delirium resulting from illness, or while the member is under treatment for insanity, or has been judicially declared to be insane; but in all cases not within said exceptions, the amount of money contributed to the benefit fund by such members shall be returned, and shall be paid to the beneficiaries' out of said fund in lieu of the benefit.”
A section of the constitution of the Supreme Court of Honor in force when the benefit certificate was issued, and at the date of the holder’s death was as follows :
“Sec. 99. After two years certificates of membership shall be incontestable for any cause except fraud, violation of the constitution or laws of this order, or a failure to pay the assessments for the benefit and general funds as provided by the laws.”
Defendant in error had judgment in the court below.
The sole question involved is whether the provision in the benefit certificate which rendered it incontestable after two years was void when it appeared that the insured took his own life. Counsel for plaintiff in error rely on the case Ritter v. Mutual Life Insurance Co., 169 U. S. 139, 18 Sup. Ct. 300, 42 L. Ed. 693, which in effect holds that where there is no provision in a policy of insurance respecting suicide it will be avoided by the death of the insured by his own hand ; that public policy requires that self-destruction should avoid the policy. That case was decided on the facts presented in the record, which showed an absence of any agreement in the policy respecting death by suicide; It was concluded that in such cases there is an implied agreement that the insured will not destroy himself. It cannot be denied that mu'ch of the argument of the learned justice who delivered the opinion is applicable to the case before us. We must, however, look at the facts on which the conclusion of the court rested and see how nearly they coincide with the facts in the present case in order to determine the force of the decision as an authority to be followed. As before stated, in the Ritter case there was no stipulation in the policy respecting suicide. The amount of the insurance was payable at death to the estate of the insured, and not to any particular person as beneficiary. Missouri has a statute excluding suicide as a defense to an action on an insurance policy, unless it can be shown' that self-destruction was contemplated by the insured at the time of making the application. This statute has been held to be valid, without apparent question that it contravenes public policy. (Knights Templars’ Indemnity Co. v. Jarman, 187 U. S. 197, 23 Sup. Ct. 108, 47 L. Ed. 139; Haynie v. Knights Templars & Masons’ Indm. Co., 139 Mo. 416, 41 S. W. 461; Christian v. Ins. Co., 143 id. 460, 45 S. W. 268; Logan v. Fidelity and Casualty Co., 146 id. 114, 47 S. W. 948.)
In Patterson and others v. The Natural Premium Mu- total Life Ins. Co., 100 Wis. 118, 123, 75 N. W. 980, 42 L. R. A. 253, 69 Am. St. Rep. 899, it was said.:
“The fact that insurance companies have almost universally deemed it necessary to insert in their policies provisions exempting them from liability in case of suicide, ‘sane or insane,’ may perhaps also be considered as showing the general trend of opinion upon the subject in insurance circles ; but, whether this deduction is to be properly drawn or not, we think it certain that the fact-that life-insurance policies universally contain this provision is of weight in determining the construction now to be placed upon a policy which omits all specific reference to suicide, and also ostentatiously contains a clause providing that it shall be absolutely incontestable for any cause save for nonpayment of premiums or misstatement of age. What would an applicant for insurance be entitled to think was the meaning of such a policy, when presented to him; garnished with the usual and customary commendations of the average solicitor of insurance? Certainly he would not think that its legal effect was the same as that of a policy containing the usual provisions against suicide, sane or insane.”
It was further held in the decision quoted from that the interest of the named beneficiary is a vested interest which passes to the administrator of the beneficiary in the case of his death and falls within the New York and Minnesota rule, which is, as against such a beneficiary, that suicide by the insured while sane is not a defense, in the absence of a provision to that effect in the policy. The court said :
“Nor would the application of that principle to this •case necessarily conflict with the Ritter case, where the policy was in favor of the estate of the insured. It may well be in such a case that the intentional suicide of the insured while sane would prevent a recovery by his personal representatives, and yet not prevent a recovery in case of a policy in favor of beneficiaries who had a subsisting, vested interest in the policy at the time of the suicide, and who could not, if they would, prevent the act of the insured. . . .
-“The incontestable clause would seem to effectually bar this defense. If this clause be not altogether a glittering generality, put in for no purpose except to induce men to insure, it would seem that it must cover such misstatements or omissions as are here alleged. Such clauses have been upheld by various courts. (Wright v. Mut. B. L. Asso., 118 N. Y. 237, 23 N. E. 186, 6 L. R. A. 731, 16 Am. St. Rep. 749; Simpson v. Life Ins. Co., 115 N. C. 393, 20 S. E. 517; Goodwin v. Provident S. L. Ass. Asso., 97 Iowa, 226, 66 N.W. 157, 32 L. R. A. 473, 59 Am. St. Rep. 411; Kline v. Nat. B. Asso., 111 Ind. 462, 11 N. E. 620, 60 Am. Rep. 703.) ”
In Royal Circle v. Achterrath, 204 Ill. 549, 68 N. E. 492, a late decision by the supreme court of Illinois, the precise question involved was decided against the contention of counsel for plaintiff in error. The case of Goodwin v. Assurance Association, 97 Iowa, 226, 66 N. W. 157, 32 L. R. A. 473, 59 Am. St. Rep. 411, takes the same view. See, to same effect, Mareck v. Mutual Reserve Fund Life Assn., 62 Minn. 39, 64 N. W. 68, 54 Am. St. Rep. 613. We deem it unnecessary to say more than has been expressed in the decisions favorable to defendant in error which we have quoted and cited. They fully cover the case and meet with our approval.
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
Mason, J. :
John Nelson, charged with the murder of Albert Morris, was convicted of manslaughter in the second degree, and appeals. The principal claim of error is based upon the fact that the prosecution was permitted to introduce in evidence the testimony given by a witness at a former trial of the same case, such witness having left the state, and being therefore beyond the reach of process: It is argued by appellant that this was a denial of the constitutional right of the accused in a criminal prosecution to meet the witnesses face to face. The State v. Foulk, 57 Kan. 255, 45 Pac. 603, is cited as supporting this contention, but it does not reach the question at issue. There it was held to be error to admit in evidence, over the objection of defendant, the testimony given by a witness in a forner trial, but the record disclosed the fact that one objection made to it was that the whereabouts of the witness were known to the state and no reason had been shown why he was not produced. It was agreed that he was confined in the penitentiary, but this did not necessarily prevent his being brought into court. His imprisonment made him- an incompetent witness, but this is an objection the defendant might have waived and apparently was disposed to waive. ' A reading of the opinion shows that the question whether such testimony might be received when for any reason the attendance of the witness could not be procured was neither determined nor discussed by this court.
The question is one upon which the decisions are in conflict. They are well collected and arranged in 14 Cent. Dig., col. 1933, § 1233, and col. 2272, § 1542. But the authorities are so nearly unanimous that they may be said to be in substantial agreement that the former testimony of a witness who has since died mfay be used in further proceedings in the same criminal case, over the objection of defendant. (14 Cent. Dig., col. 1931, § 1232.)
In The State v. Wilson, 24 Kan. 189,36 Am. Rep. 257, the rule was applied where the action in which the testimony was used was not technically the same as that in which it was taken, both, however, being prosecutions for the same criminal act. Some cases base this doctrine upon a construction given to the constitution as a matter of compelling necessity, to avoid a failure of justice (Marler v. The State, 67 Ala. 55, 42 Am. Rep. 95) ; or upon the ground that the constitutional provision in this regard is but declaratory of the common law, under which this practice was allowed. (State v. Mc O’Blenis, 24 Mo. 402, 69 Am. Dec. 435.) Others hold that the provision in question is met by the defendant being confronted by the witness who undertakes to state the testimony formerly given by the person since deceased, leaving to be determined only the competency of that kind of evidence. The great majority of courts that have permitted such evidence at all have done so either upon this ground, or upon the theory that, when the defendant has once met a witness face to face and had an opportunity to cross-examine him, the constitutional requirement has been satisfied, and no necessity exists, so far as the constitution is concerned, for again producing that witness in court. The following quotations illustrate these views:
“The requirement that the accused shall be confronted, on his trial, by the witnesses against him, has sole reference to the personal presence of the witnesses, and it in no wise affects the question of the competency of the testimony to which he may depose. When the accused has been allowed to confront, or meet face to face, all the witnesses called to testify against him on the trial, the constitutional requirement has been complied with. This was done on the trial of the case before us, in the district court. Mary Clinch was not a witness on that trial. Being dead, it was an impossibility that she could be a witness on that trial. Logan, however, who was a witness, and did testify, did meet the accused face to face on the trial. The provision in the bill of rights was complied with. And the true question is, not whether the constitutional right of the accused was violated, but whether the testimony given by Logan on the the trial was competent or not.”- (Summons v. The State, 5 Ohio St. 325, 341.)
“The substance of the constitutional protection is preserved to the prisoner in, the advantage he has once had of seeing the witness face to face, and of subjecting him to the ordeal of a cross-examination.” (Mattox v. United States, 156 U. S. 237, 244, 15 Sup. Ct. 340, 39 L. Ed. 409.)
It is obvious that if either of these two propositions is sound, it applies with as much force when a witness is beyond the reach of process as when he is dead. In the elaborately considered case of Cline v. The State, 36 Tex. Cr. Rep. 320, 37 S. W. 722, 61 Am. St. Rep. 850, in which the authorities are reviewed at length, the court recognizes this fact and repudiates the entire doctrine, overruling many earlier Texas cases, and taking a position in opposition to the current of judicial decision. Logically, there seems no middle ground. Unléss the requirement of the constitution is complied with, the death of a witness should not permit the use of his testimony. If it is complied with, the evidence should be admitted, unless open to some objection other than the constitutional one. Accordingly, as already stated, in a large number of cases it is held that the absence of the witness from the jurisdiction of the court, and the consequent impossibility of compelling his attendance, justifies the use of his former testimony. While there are also many decisions to the contrary, the recent tendency seems to favor the rule stated. This is illustrated by a comparison of a part of section' 1195 of 1 Bishop’s Criminal Procedure (3d ed.) with the corresponding matter in the same section in 1 Bishop’s New Criminal Procedure, which, respectively, read as follows :
‘ ‘ If there has been a prior proceeding involving the same issue between the same parties, conducted regularly in pursuance of law, and therein the defendant had the opportunity to cross-examine the witnesses against him — not otherwise — then, if a witness has died, or, says Archbold, if he is insane, though the insanity were of a temporary nature, or if it appeared satisfactorily to the court that he was kept out of the way by means of the procurement of the defendant, or he were bedridden or so ill as to be unable to travel (but not if simply he cannot be found, or, by most opinions, if only he is absent from the state or otherwise beyond the reach of process), what he testified to at the former hearing may be shown in evidence against the defendant in the present one.”
“If a witness has died, or has become insane, though but temporarily, or by the opposite party is kept out of the way, or is too ill or infirm to come to the court (for it cannot adjourn to his house) ; or if from any cause for which the party is not responsible, such as. residence beyond the process of the court, or the like, the witness’s personal presence cannot be had (a rule as to which the decisions are somewhat indistinct and inharmonious), added to which, if there has been a prior proceeding involving the same issue between the same parties, conducted regularly in pursuance of law, and therein the defendant had the opportunity to cross-examine the witnesses against him — not otherwise — what was on such former hearing testified to by a witness whose presence cannot now be had, may be shown against the defendant.”
In People v. Fish, 125 N. Y. 136, 26 N. E. 319, the inquiry was as to the validity of a statute authorizing the use in a criminal case of the deposition of a witness who “is dead, or insane, or cannot, with due diligence, be found in the state.” The court said :
“The evidence of the witness was taken in his (defendant’s) presence where he had the opportunity to cross-examine him, and where he did in fact cross-examine him, and thus he had all the protection that the bill of rights and the constitution were intended to secure him. This constitutional provision was not intended to secure to the accused person the right to be confronted with the witnesses against him upon his final trial, but to protect him against ex parte affidavits and depositions taken in his absence, as was frequently the practice in England at an early day. It' was never regarded as an invasion of the fundamental rights of an accused person to read depositions upon his trial, if at some stage of his case he could be confronted with and cross-examine the witnesses to be used against him.”
In Commonwealth v. Cleary, 148 Pa. St. 26, 39, 23 Atl. 1112, it was said :
“Where a witness has been examined in the pres-' ence of the accused, and the latter has had a full opportunity to cross-examine him, we think the additional requirement, that the defendant should meet his accuser face to face, is fully complied with. Where, upon a subsequent trial, the witness is dead; or beyond the jurisdiction of the court, there seems no good reason why his testimony taken upon the former trial, and clearly proved, should not be admitted.”
And in State v. King et al., 24 Utah, 482, 486, 68 Pac. 419, 91 Am. St. Rep. 808:
“By taking the testimony of the witness Johnson in the presence of the accused upon the examination at a time when he had the privilege of cross-examination, this constitutional privilege is satisfied, provided' the witness cannot, with due diligence, be 'found within the state.”
And again, quoting from 1 Greenleaf on Evidence, sixteenth edition, section 163$, page 284:
“The death of the witness has always, and as of course, been considered as sufficient to allow the use of his former testimony. The absence of the witness from the jurisdiction, out of reach of the court’s process, ought also to be sufficient, and is so treated by the great majority of courts. Mere absence, however, may not be sufficient, and it is usually said that a residence or an absence for a prolonged or uncertain time is necessary. A few courts do not recognize at all this cause for non-production ; a few others deny it for criminal cases. Neither position is sound. Inability to find the witness is an equally sufficient reason for non-production, by the better opinion, though there are contrary precedents. The sufficiency of the search is usually and properly left to the trial court’s discretion.”
And in Territory of Idaho v. Evans, 2 Idaho, 627, 633, 23 Pac. 232, 7 L. R. A. 648 :
“While the decisions have not been uniform in their conclusions, the weight of authority is that depositions taken in the presence of the defendant, with the right of cross-examination, is being confronted by the witnesses, and meets the demands of the constitution. Such depositions have been admitted when it appeared the witness was dead. If constitutional in such case, the same justification can be urged for their use in case of absence of the witness.” '
We think the only reasoning that justly sustains the use of the former testimony of a witness who has since died applies with equal force where the witness is out of the jurisdiction of the court and so cannot be produced, and conclude that there was no error in the ruling of the trial court in this regard. Apart from the constitutional question, the evidence was competent. (Railroad Co. v. Osborn, 64 Kan. 187, 67 Pac. 547, 91 Am. St. Rep. 189.)
Another phase of the same objection is presented in virtue of the fact that thei’e is no showing in the record that the state had taken the precaution before the witness left the state to serve him with a subpoena or require him to give a recognizance to appear. To have done so would have placed him under an obligation to attend the subsequent trial, but could not have compelled such attendance. In Motes v. United States, 178 U. S. 458, 20 Sup. Ct. 993, 44 L. Ed. 1150, it was held that the absence of the witness being due to the negligence of the prosecution, his former testimony could not be used against the defendant. But there the witness in question was a codefendant held without bail, and it was within the absolute power of the government to secure his presence. He was taken from the jail in violation of law by the official agent of the United States and practically set at liberty. Moreover, his disappearance did not occur long enough prior to his being called as a witness to justify the conclusion that he had gone out of the state.
In any case where it appears that the absence of a witness is by the procurement- of the prosecution, the trial court should, of course, protect the defendant and refuse to permit the use of the former testimony, not because of the constitutional requirement referred to, but because the ordinary rules of evidence require the presence of the witness if it can be had, and a party procuring the absence of a witness could not derive an advantage from it. But the mere fact that the absent witness was not under subpoena does not raise a presumption of bad faith, or amount to such lack of diligence as of itself to forbid the use of his testimony given at a former trial. • .
A further claim of error is based upon the admission of the former testimony of another witness, said to have died before the second trial. It was urged that there was no sufficient proof of his death. ' Whether that is true or not, there was a sufficient showing that he had left the state to bring the case within the operation of the rule already discussed.'
Error is assigned in the giving of an instruction that evidence of previous threats made by Morris against defendant might be considered for the purpose of throwing light on the question as to which was the aggressor, and as tending to show the animus of the deceased. This is conceded to be the rule of law in relation to uncommunicated threats; but it is insisted that the court, having entered upon the discussion of the effect of threats against defendant at all, should have instructed as to the consideration that should be given to threats that were communicated to defendant, since there was evidence that some of them were communicated. The argument is made that the jury would naturally infer that even the communicated threats should not be considered for any other purposes than those specifically named in the instruction. This is not sound. There is a great and obvious difference in the effect to be given to uncommunicated threats against the defendant and threats that are communicated.' The essential thing in ■ the one case is the fact that the victim of the homicide made the threat, and in the other that the defendant knew or believed that he had made it. In the latter case it is really the communication and not the threat that is important. The threat is relevant because it tends to show the feeling of the deceased toward defendant; the communication of the threat is relevant because it tends to show that the defendant knew of such feeling and was justified in acting with reference to it. The two subjects are not so closely related that the court may not instruct as to the force of threats without also specifically referring to the communication of threats. The defendant did not ask for an instruction as to communicated threats and therefore the omission to give one was not error.
- Other assignments of error relate to the evidence and do not require special discussion. It is claimed that the evidence did not justify the conviction because it showTed that the defendant acted.only in self-defense. The homicide was the result of a street fight. Morris was unarmed, except that he had a small penknife in his hand. Nelson had a revolver, which he fired at Morris four or five times, one shot being almost immediately fatal. Other facts appear in the statement in The State v. Nelson, 65 Kan. 689, 70 Pac. 632. It is obvious that the guilt or innocence of the defendant wTas a fair matter for the determination of a jury.
The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
This is an appeal from a conviction for a violation of the prohibitory-liquor law. We have given attention to the points of error raised by counsel for the appellant and find in them nothing requiring a reversal of the judgment.
The judgment of the court below will be affirmed. | [
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The opinion of the court was delivered by -
Mason, J. :
Lewis W. Ziegler brought an action against James L. Linn and wife to foreclose a real-estate mortgage executed by Harriett Matney, and recovered judgment, which defendants now ask this court to reverse. The trial court made detailed findings of fact, some of which plaintiffs in error claim are not supported by evidence. An examination of the record has resulted in the conclusion that this complaint is not well founded, and the findings will be accepted as conclusive without further discussion, except in connection with one to the effect that at the date of the mortgage the property covered was not the mortgagor’s homestead. This, on account of its importance in the determination of the case, and because it of necessity partakes somewhat of the nature of a conclusion of law, will be considered together with the other legal questions involved.
The first objection urged against the mortgage, which was made by a married woman without her husband’s consent, is that it is void because it covered a part of the homestead. The mortgaged tract was the south half of a quarter-section of land, an undivided seven-eighths of which was owned by Harriett Mat-ney, the mortgagor, the remaining undivided one-eighth being owned by James L. Linn, her son. There was located on the north half of the quarter-section the family dwelling-house of Mrs. Matney and her husband, with the orchard, barns and other buildings pertaining thereto. Linn and his wife occupied the south half as their homestead. Linn farmed parts of both tracts, paying rent therefor to Mrs. Matney. The question is not whether these considerations compel the conclusion that the south half was not a part of Mrs. Matney’s homestead, but whether they compel the conclusion that it was. In Hay v. Whitney, 59 Kan. 771, 51 Pac. 896, it was said : “There cannot be two homesteads in a single tract of land belonging to different persons at the same time.” But this language was used where one of the two persons claiming a homestead right held under the other, his estate being carved out of the other’s.
In Kansas the owner of an undivided interest in real estate may assert a homestead right to the extent of that interest, in no wise, however, to the prejudice of his cotenant. (Tarrant v. Swain, 15 Kan. 146.) And no reason is apparent why the cotenant may not likewise enjoy the same protection as to his interest. (Meguiar v. Burr, 81 Ky. 32.) But in order for this south eighty acres to have been a part of the Matney homestead, it must have been actually or constructively occupied as a part of the home place and regarded as such. It would not of necessity become a part of the homestead by the mere fact of contiguity, regardless of the use made of it, or the attitude of the owners towards it. “In order that anything shall be a part of the homestead, it must not only be connected therewith as one piece of land is connected with another to which it adjoins, but it must also be used in connection therewith and as a part thereof. In legal phrase, it must be appurtenant thereto.” (Ashton v. Ingle, 20 Kan. 670, 682, 27 Am. Rep. 197.) “The fact that it is adjacent, and that the ground covered by it, together, with the farm, does not exceed 160 acres, does not change the character of the use.” (Mouriquand v. Hart, 22 Kan. 594, 597, 31 Am. Rep. 200.)
It is true that upon the facts so far stated herein there might appear to be a sufficient common use of the property to warrant a claim of homestead in the entire tract of 160 acres. Granting that the mere physical conditions are not inconsistent with such a claim, the important inquiry remains as to how the parties in interest regarded the matter. The law does not require that every part of a homestead shall be in actual use by the owner, but it does require that the whole tract must be devoted to the purposes of a homestead and not to any other purpose inconsistent therewith. (Morrissey v. Donohue, 32 Kan. 646, 5 Pac. 27.)
Here the defendants pleaded in their answer, which was a part of the pleadings upon which the case was tried, that from a time prior to the making of the mortgage they continuously occupied the mortgaged property as their homestead. It is especially to be noted that this allegation is an'assertion of a homestead interest, not merely to the extent of the undivided one-eighth interest of James L. Linn in the quarter-section, but to the extent of the entire title to the south half. This distinctly appears from the language of the answer, which alleges that they occupied this tract as owners by title acquired from Mrs. Matney, although the court finds that they occupied it in the expectation that she would devise it to Linn. The Linns are in court asserting that the mortgaged property at the time the mortgage was made was their homestead. They cannot be heard to question that fact. And the land cannot have been their homestead in the sense in which-this claim is made, and at the same time have been the homestead of the Matneys. “The word ‘residence/ like the word ‘homestead/ is not confined merely to the dwellin'g-house, but it may also include everything connected therewith used to make the home more comfortable and enjoyable. But the words ‘homestead' and ‘residence’ cannot be intended to include some other and independent family’s home and residence.” (Ashton v. Ingle, supra.)
Under the pleadings, as well as under the findings, it must be said that all of the parties concerned elected to consider the south eighty acres as the Linn homestead and to confine the Matney homestead to the north eighty. This was their privilege. The law did not force the Matneys to occupy the full 160 acres as their homestead. It was competent for them, as suggested in Hoffman v. Hill, 47 Kan. 611, 28 Pac. 623, totally to abandon the south half by making it another person’s homestead. This was done and it results that the mortgaged property was not the homestead of the mortgagor, and that the mortgage was valid. In Matney v. Linn, 59 Kan. 613, 54 Pac. 668, the same property was involved and the entire quarter-section was treated as the homestead of the Matneys. This was in accordance with a stipulation there made, but as Ziegler was not a party to that action he was not affected by it.
The following facts are relied upon as estopping plaintiff from recovering upon this mortgage : Harriett Matney having died, Ziegler exhibited his note to the administrator and had it allowed by the probate court. Thereafter, being informed and believing that at the time of the execution of the mortgage the land covered by it was a part of the Matney homestead, and finding the estate to be insolvent, he executed a satisfaction of the mortgage on the margin of the record and began an action in the district court against James L. Linn, to whom Mrs. Matney had conveyed the land, asking to have the conveyance set aside and the land subjected to the payment of his claim as a demand against the estate. In this he was defeated. Learning afterward that the property had not been a part of the mortgagor’s homestead, he brought the present action, alleging that he had executed such release and brought such suit under a mistake of fact.
The presentation and allowance of the claim in the probate court does not prevent a resort to the foreclosure of the mortgage. “Neither the presentation of the claim in the probate court nor the failure to present it precludes the foreclosure of the mortgage lien until the mortgage debt has been paid or extinguished.” (Andrews v. Morse, 51 Kan. 30, 32 Pac. 640.) The signing of the satisfaction of the mortgage reciting a payment of the debt was without any significance and presents no difficulty. Nothing was in fact paid. The mortgagee derived no benefit from it, the owner of the land was in no way prejudiced. No rights of third parties intervened. It was made through a mistake of fact, and the court properly held it to be without effect. (Loan Co. v. Garrity, 57 Kan. 805, 48 Pac. 33.)
The former action was not a bar to the present one. No question of the rights of plaintiff under the mortgage was then litigated. The two causes of action were not the same. The grounds of relief in the two are so far inconsistent that the election to pursue the first, if made with a full knowledge of all the facts, would doubtless bar the subsequent resort to the second. But to conclude the plaintiff,’the election must have been made with knowledge of all the facts, whereas he was mistaken in the most important matter affecting his rights. (2 Story on Eq. Jur., 13th ed., § 1097 ; Wells, Fargo & Co. v. Robinson, 13 Cal. 133; 7 Encyc. of Pl. & Pr. 366.)
It is claimed that the statute of limitations had barred the remedy. This contention is based upon the fact that the demand against the estate hacl been allowed more than six years before the commencement of this action, the argument being that the note was merged in the judgment in the probate court and that action, on the judgment was barred in five years. The allowance of a demand against an estate by the probate court has some of the attributes of an ordinary judgment, but not all of them. The statute requires all claims that are to be asserted against the general assets of the estate to be presented within a stated time, no exception being made in the case of immature obligations ; but the fact that they must be presented before due does not mature the obligation. The right to foreclose the mortgage in this case did not accrue until the maturity of the note, and the action was brought within five years from that time.
The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
For reasons stated in Manley v. Park, ante, page 400, the judgment in this case will be reversed, and the cause remanded, with directions to render judgment for defendant. | [
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The opinion of the court was delivered by
Mason, J. :
Joseph P. Campbell died intestate, leaving surviving him no wife, child, father, or mother. The distribution of his property is the subject of this litigation. Each of his parents had been twice married, and at his death there were living descendants of each marriage, namely, three children of his deceased full sister, Alice Belle Williams, one child of his deceased half-brother, William Campbell, the son of his father and a former wife, and a half-brother, Waller Maupin, and a half-sister, Susan Tays, the children of his mother and a former husband. As the children of a deceased parent take collectively the share the parent would have inherited if living, the consideration of the present case may be simplified by regarding William Campbell and Alice Belle Williams as still living. With this in view, to ■ayoid unnecessary words, they will be spoken of as ■though alive, and the collective shares of their children will be spoken of as their respective shares. The trial court held that one-half of the property went to ■the heirs of the intestate’s father and the other half to the heirs of his mother. The half descending through the father would, by this rule, go in equal parts to his son, William Campbell, and to his daughter', Alice Belle Williams, each thus receiving one-half of the half-estate, or one-fourth of the whole ; and the half descending through the mother would go in equal parts to her three children, Alice Belle Williams, Waller Maupin, and Susan Tays, each receiving one-third of the half-estate, or one-sixth of the whole. Alice Belle Williams, receiving one-fourth through ■her father and one-sixth through her mother, would thus get five-twelfths altogether. This is in accord- anee with the express declaration of this court in Russell v. Hallett, 23 Kan. 276.
Susan Tays and Waller Maupin bring,this proceeding in error and contend that under our statute the true rule is that the property of the intestate is to be considered as a common fund descending through his parents collectively, going share and share alike to each of the children of either or both, namely, William Campbell, Alice Belle Williams; Susan Tays, and Waller Maupin, thus giving the last-named two (plaintiffs in error) each one-fourth, instead of one-sixth, of the estate. This claim is based upon the following language of sections 21 apd 29 of the statute of descents and distributions (Gen. Stat. 1901, §§ 2522, 2580) :
“§ 21. If one of his parents be dead, the whole of the estate shall go' to the surviving parent; and if both parents be dead, it shall be disposed of in the same manner as if they, or either of them, had outlived the intestate and died in the possession and ownership of the portion thus falling to their share, or to either of them, and so on through ascending ancestors and their issue.”
“§29. Children of the half-blood shall inherit equally with children of the whole blood.”
It is argued in behalf of plaintiffs in error that the italicized words ”or either of them” were designed to direct the descent from the parents collectively and not individually ; that the provision quoted from section 29 applies to the case at bar and requires that the children of the intestate’s mother (his half-sister and half-brother) shall inherit the same share as the child of his father and mother (his full sister) ; and that the construction adopted by the trial court gives no force either to the words quoted and italicized or to the provision regarding children of the half-blood. It is true that it is difficult to attach any effect to the words “or either of them” as here used, but their appearance in the statute is explained by its origin. The section was adopted in 1868 from Iowa. (Rev. Stat. 1860, § 2497.) Under the laws of that state then existing, if the intestate left no issue one-half of his estate went to his wife and the other half to his parents if living, -or to the survivor if either was dead. The section just referred to further provided :
“Sac. 2497. (4) If both parents be dead, the portion which would have fallen to their share or to either of them by the above rules shall be disposed of in the same manner as if they or either of them had outlived the intestate and died in the possession and ownership of the portion thus falling to their share or to either-of them, and so on, through ascending ancestors and their issue.”
It is plain that our own statute was taken from this, with only so much change as was made necessary by the fact that here the parent takes nothing if the intestate leaves a widow. The words in question occurring in this section, while perhaps not necessary to its' meaning, result naturally from the context. The Iowa court has refused to give them the construction contended for by plaintiffs in error. (Bassil v. Loffer, 38 Iowa, 451, decided in 1874.)
That the provision with reference to children of the half-blood was not intended to mean that descent should be traced through the parents collectively, all the children of either or both sharing equally, follows from the fact that when it was adopted (in 1859) no part of the estate of the decedent went to the mother or her heirs unless there was a failure of heirs in the male line. (Comp. Laws 1862, ch. 80, §§ 18, 19, 20.) The effect of the provision, as applied to the facts of this case, if the law were still the same, would be that William Campbell, the half-brother of the intestate, would receive an equal share with Alice Belle Williams, his full sister, each being the child of the intestate’s father, through relationship to whom they would inherit. Whether the same result would have followed from other sections of the statute, independently of this one, is not very important, since this may merely have been added to negative explicitly the rule of the common law that one related to the intestate by half-blood could not inherit.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J. :
The plaintiff brought this lawsuit on two causes of action: One for damages resulting to her by reason of a trespass committed upon her real estate and the destruction of her fences and trees ; the other to recover the value of a certain dwelling converted by the defendants. The defendants pleaded a general denial and also a former adjudication. The former adjudication went only to the second cause of action. The reply admitted the former proceedings, but denied the jurisdiction of the court. After the issues were thus joined the defendants moved the court for judgment upon the pleadings. This motion was sustained and judgment rendered for defendants.
The answer of the former adjudication clearly showed that the justice of the peace who tried the cause had jurisdiction of the parties and of the subject-matter, and that the dwelling-house which was sought to be recovered by the plaintiff in that action was the same for the value of which she sought to recover in this action. The subject-matter of the first cause of action was in no way involved in the replevin action. That was an action in replevin for the dwelling-house, which at the time was alleged to be in the possession of defendants upon the public highway, and for damages for the wrongful detention thereof. The first cause of action alleged in the petition in this case was for trespass upon the plaintiff’s real estate and the destruction of certain fences and growing trees thereon. An issue of fact was joined upon this cause by the denial filed by the defendants. It was error for the court to render judgment against the plaintiff as to that cause of action.
The defendants in error attack the jurisdiction of this court on the ground that Kate May Pettigrew, one of the defendants in the court below and who will be materially affected by a reversal of the judgment of that court, has not been made a defendant in this court. The record shows that all the other defendants answered separately, but it does not show that this defendant answered or appeared in any way. It is claimed, however, that the journal entry sustaining the defendants’ motion for judgment upon the pleadings shows that she appeared in that motion. This contention is not sustained by the record. This journal entry reads :
“Now, on this 6th'day of February, 1902, this case-, comes on for hearing on the oral motion of the defendants for judgment for said defendants on the' pleadings in said cause.- And come said defendants by L. Scott, their attorney, and comes said plaintiff by Sol. L. Long, one of her attorneys.” ■ •
Previous to this Scott appeared for the other defendants who answered in the cause, but had not appeared in any way for this particular defendant. This court will presume, in the absence of any showing, that the defendants named in the journal entry were the defendants for whom he appeared, and not those for whom he had not previously appeared. The motion is overruled.
The cause is remanded, with instructions to.the court below to set aside the judgment rendered andtA overrule the motion for judgment upon the pleadings*.
All the Justices concurring. | [
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Per Curiam:
This action was brought by William Elliott against the city of Fort Scott to recover damages for personal injuries alleged to have been sustained by falling into an excavation negligently permitted to exist in one of the public streets of the city. From a judgment against it the city prosecutes error.
An objection was sustained by the court to the reading of an affidavit as the deposition of an absent witness, on the ground that the matter contained in the affidavit was hearsay. In this we think the court committed no error. A small portion of the matter contained in the affidavit was admissible, but the larger and more material portion was hearsay, and there was no offer by defendant to omit that ¿art which was objectionable. '
' Error is also predicated upon an instruction to the effect that it was admitted by the pleadings that the defendant was a city of the first class. This was not prejudicial to the defendant. The trial court, as well as this, takes judicial notice that the city of Fort Scott is a city of the first class.
It is also contended that it was error to render judgment against the city for costs because it was. not alleged in the petition, nor proved at tbe trial, that before commencing this action plaintiff presented his claim to the city council to be audited. The record seems to sustain this contention. Defendant asked for .judgment for costs, notwithstanding the general verdict for plaintiff, which was denied. In this the court erred.
Section 860, Gfeneral Statutes of 1901, provides:
“No costs shall be recovered against such city in any action brought against it for any unliquidated claim which has not been presented to the city council to be audited. . . .”
In the City of Atchison v. King, 9 Kan. 550, this court held:
“There can be no recovery for costs unless the claim has been presented to the city council for its action.”
This cause is remanded, with instructions to modify the judgment in accordance with this opinion. With this modification, the judgment is affirmed. The costs of the proceedings in this court are to be divided equally. | [
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The opinion of the court was delivered by
GreeNE, J. :
This proceeding arose in the court below on a motion to confirm a sale of real estate and a motion to set aside such sale. Upon the hearing the court overruled the motion to set aside the sale and sustained the one to confirm it. The defendants prosecute this proceeding. *
The petition in error presents many questions, and counsel-have argued them extensively. The only one this court can examine is whether the court erred in overruling the motion to set aside the sale. The particular objection urged to the confirmation is that the return of the sheriff did not show that notice of sale had been published as required by law. We think •this contention well founded. That part of the return of the sheriff referring to the publication of the notice reads r
“I caused public notice that I would sell said property at public auction to the highest bidder in the manner directed by said writ on June 24, 1902, at ten o’clock a. m., at the east front door of the Shawnee county court-house, in the city of Topeka, in said Shawnee county, to be given by advertisement in the Mail and Breeze, a weekly newspaper regularly printed and published and of general circulation in said county of Shawnee.”
The writ does not direct the manner of publishing the notice. This the officer gets from the statute. It is not shown by the return when, or how long, this notice was published in the Mail and Breeze. Section 4905, General Statutes of 1901, provides :
“Lands and tenements taken on execution shall not be sold until the officer causes public notice of the time and place of sale to be given for at least thirty days before the day of sale, by advertisement in some newspaper regularly printed and published and having a general circulation in the county.”
The return of the officer should show a full and explicit compliance with this statute. Any omission in this respect will render the sale voidable. (Paine v. Spratley, 5 Kan. 525; Moore v. Pye, 10 id. 246; McCurdy v. Baker, 11 id. 111; Rounsaville v. Hazen, 33 id. 71, 5 Pac. 422.)
By reason of the omission of the officer to show in his return that he had caused the notice of sale to be published as required by law, the motion to set aside the sale should have been sustained and the motion to confirm it overruled.
There appears in the record the affidavit of the business manager of the Mail and Breeze showing that such notice was published as required by law. This, however, is not made a part of the sheriff’s return, and, so far as the record is concerned, does not appear to have been offered in evidence to prove that the notice had been published.
For the reasons indicated the cause is remanded, Tyibh instructions that unless the return of the sheriff, upon proper application and showing, be amended to comply with the statute, or unless, upon proper ap-' plication therefor, it be shown that the notice of such sale was in fact published as required by statute, the order of confirmation and sale be set- aside.
All the Justices concurring. | [
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Per Curiam:
Plaintiff’s intestate was killed because of a defect in a public highway. The defendant township was charged with neglect in the matter, and a judgment for damages was recovered against it, which it now desires to have reviewed.
The action of the trial court upon the matters complained of in the first, third and ninth specifications is so clearly correct as to require no discussion. The burden of the second, fourth, 'seventh and tenth specifications is that the evidence was insufficient to warrant the verdict and the special findings, and that the findings and the record disclose want of care on the part of the deceased sufficient to bar recovery.
The evidence and the findings are sufficient to support the judgment in all respects. Upon the matter of the negligence of the deceased, it appears that he was a careful man with horses; was sober, and in good health; that people generally traveled next to the bank over which his wagon fell; that the other side of the road was not so available; that the other side of the road was bordered by a barbed-wire fence; that a few minutes before the accident occurred the deceased said he could see well enough to enable him to drive; that he stopped shortly before tire accident, and that he was not going fast. Other items of evidence also acquit him of contributory negligence.
The subjects of specifications 5 and 6 are covered by the case of Reading Township v. Telfer, 57 Kan. 798, 803, 48 Pac. 134, 57 Am. St. Rep. 355.
The instruction relating to damages referred to in the eighth specification is not fairly subject to the criticism made upon it, and that it was not taken advantage of by counsel for plaintiff for the purposes suggested appears from the fact that no objection on that ground was made. While not as formal as it might have been, the jury do not appear to have been misled by it to such an extent as to find against either the law or the evidence in the case.
The judgment of the district court is affirmed. | [
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Per Curiam:
The plaintiff in error, as plaintiff below, brought this action upon two promissory notes given by the defendants in error for the purchase-price of a corn-harvesting machine. The defendants, as one of the grounds to defeat plaintiff’s recovery, pleaded that it was a foreign corporation, and had not complied with the provisions of section 1283, General Statutes of 1901, requiring foreign corporations to file with the secretary of state certain statements as therein provided, and that consequently it could not maintain its action. The reply contained a general denial.
Upon the trial, after plaintiff' had rested, defendants demurred to plaintiff’s evidence because it did not show a right of action in the plaintiff against the defendants, The court sustained the demurrer upon the specific ground that the plaintiff (the burden resting upon it so to do) had not shown that it had complied with the provisions of the section above cited at the time of the commencement of the action, and thereupon dismissed the action and adjudged that the plaintiff should pay the costs.
This was error, for which the case must be reversed. We have already decided, in Northrup v. Wills, 65 Kan. 769, 70 Pac. 879, that the burden' in such case rests upon the defendant.
Various other matters are urged in the brief of plaintiff in error, but we do not think it necessary to pass upon, them, as different issues may arise upon another trial.
.The case will be remanded for further proceedings. | [
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The opinion of the court was delivered by
Fromme, J.:
The plaintiff, Warren Dean Long, was awarded a jury verdict of $8,500 as balm for the alienation of the affections of his wayward spouse, Madonna. The defendant, Edward F. Fischer, who allegedly procured the alienation of affections, appeals.
Although nine points of error are raised on appeal, we believe that this case may be disposed of by considering the sufficiency of the evidence. The evidence was insufficient and defendant’s motion for a directed verdict should have been sustained.
We will refer to the parties in this so-called “eternal triangle” as Long, Madonna and Fischer.
Long married Madonna when she was seventeen years of age. Long was twenty-four. Following the marriage they lived on a farm near Cawker City, Kansas. Their life on the farm was happy but filled with hard work and little income. Later they moved to town and Long obtained employment with a farm implement company. They became the parents of two children and acquired a home on South Fifth Street in Lincoln, Kansas. Their marital relationship appears to have been normal until July, 1968. Long then noticed Madonna was becoming alienated from him.
Fischer, his wife and four children moved next door to the Longs in May, 1967. Long helped Fischer carry some of the household furnishings into the house. The two neighboring families thereafter enjoyed a close social fellowship. The children played together. The Longs attended parties in the basement of the Fischer home. The Longs sometimes helped prepare for the parties and clean up afterwards. They visited back and forth.
Long testified that Madonna began sleeping on the divan in September, 1968. Thereafter she refused to occupy the same bedroom with Long. Evidence of the procuring cause of the alienation prior to that time does not appear in the record of the trial. Long testified that Madonna complained of illness in July, 1968, and began seeing a doctor in Salina. She made the trips to Safina alone and on occasion she stayed overnight with relatives. In July, 1968, the Long children attended the county fair at Osborne where their grandparents lived. The Longs arranged for Madonna to pick up the children at Osborne and return home with them after the fair was over. Somehow when she made the trip she did not arrive at the grandparents’ home until 1:30 a. m. the next morning. Long and some of the relatives searched unsuccessfully for her. No information on whom she saw or what she did was placed in evidence. From these episodes, plus a later statement of Madonna during a family argument, we must, if possible, supply a procuring cause for the initial alienation.
Long testified that during a quarrel some six months later, Madonna stated, “I had guessed right, everything I had suspicions of her doing I had guessed right.” Presumably she had referred to prior transgressions with Fischer in Safina and Osborne or to more recent ones in Lincoln.
As to that period prior to September, 1968, when Madonna refused to sleep with her husband, there is no evidence of any acts on the part of Fischer which could have alienated the affections of Madonna. Surmise, conjecture, speculation and plausibility will not supply a want of proof that defendant knowingly and intentionally alienated the affections of the wayward spouse. Guilt will not be inferred from opportunity. (Powers v. Sumbler, 83 Kan. 1, 110 Pac. 97; Ogg v. Ogg, 124 Kan. 443, Pac. 647.)
In the fall of 1968, Long, Madonna, Fischer and Fischer’s wife, Rosemary, attended several public V. F. W. dances together. Long testified that “From July, 1968, on, . . . my wife and I argued every time we got on the dance floor but before that, no.” At these dances Fischer was attentive to Madonna. There is no evidence Madonna resisted his attentions or that Fischer forced himself on her. When Long threatened not to attend the dances Madonna advised him if he did not take her she would go with the Fischers. Long took Madonna to these dances because of her coercive threats to go with the Fischers. Fischer monopolized Madonna at these dances.
Long testified to finding his wife in a tent in the Fischer backyard sometime during the fall of 1968. About midnight he awoke and looked for Madonna on her divan. She was not there. After making a search of the premises he spotted a tent in the Fischer backyard. Upon further investigation he found Madonna in the tent in her night clothes with a housecoat and a blanket. Fischer was nowhere to be seen. Long jerked his wayward Madonna out of the tent and when they were back on his property he “slapped her a couple of times and accused her of meeting Fischer and she denied it.”
The next chapter of this sordid affair took place when the two couples attended the New Year’s Eve dance on December 31, 1968. Long did not want to attend this dance at Kanopolis. Madonna had planned to attend for sometime. Long finally agreed to go when Madonna threatened to go with the Fischers. The two couples started out with a few drinks at the Fischer house, then they drove to Kanopolis. Rosemary Fischer was not feeling well. Long and his vafe, Madonna, danced the first dance together. Thereafter Fischer danced with Madonna and Long retired, with his bottle, to the car where he spent the evening. No one came to look for him. On returning to the dance hall at midnight a quarrel ensued. Madonna’s blouse was torn by Long and Fischer got a New Year’s Eve kiss from Madonna. Long got no kiss from his wife. Madonna drove the car home with Long sitting silently beside her in the front seat. The two couples returned early that morning to the Fischer home to obtain something to eat. Madonna decided to spend what was left of New Year’s day at the Fischers’. Long implored Madonna to return home with him. She refused. A man of the cloth was called in to persuade her to leave, and later her parents, but all to no avail. On the morning of January 2, 1969, Madonna was persuaded to return to her house by Fischer.
The next chapter might be referred to as the washing machine episode. The Longs’ washing machine broke down and Madonna was offered and did accept the use of the Fischer washing machine. She spent considerable time at the Fischers’ doing her washing, drinking coffee and so forth. On January 11 or 12, 1969, Long woke up at 5:30 a. m. and saw his Madonna coming out of the back door of the Fischer house. When Madonna arrived home no argument ensued because Long did not want to wake up the children at that hour of the morning. The Fischer house was not lighted, the hour of Madonna’s visit was unusual and the purpose of the trip was not truly explained.
Madonna began working in a retail liquor store in January,, 1969. Fischer was seen in the store on several occasions for periods of roughly an hour or so. Fischer was advised by the owner that his loitering was against the rules, so he quit visiting the store. Six weeks later Madonna quit work.
On several occasions during January, 1969, Long discovered Fischer visiting Madonna in the daytime at the Long house. On January 14, one of the children called Long while at work to advise him that Madonna was over at the Fischers’. Long came home to argue with Madonna about the visit. Madonna threatened Long with a divorce proceeding. Long packed up and moved out of the house. On February 10, 1969, Long filed for divorce. Madonna refused his efforts at reconciliation and in May the divorce was granted. Eight days later this action was filed.
Much has been written in the case law of this state concerning the nature of the evidence necessary to support an action for alienation of affections. The difficulties of proof to support such an action have grown with the growth of case law.
In Powers v. Sumbler, supra, it was said for a plaintiff to recover it must be shown the efforts of the defendant were the controlling cause that destroyed the affection and caused the separation. It must be shown that the acts of the defendant were done knowingly and intentionally for the purpose of alienating the affections of tire wayward spouse.
In Burch v. Goodson, 85 Kan. 86, 116 Pac. 216, it was said that the means of alienation must be “continued willful machinations”, and there must be proof that defendant exerted a deliberate effort directed to the specific end, alienation.
In Roberts v. Dockstader, 144 Kan. 384, 61 P. 2d 114, it was said:
“Actions for damages for alienation of affection and for breach of promise of marriage have become so obnoxious to the public welfare that the legislatures of some states have abolished them. The remedy for alienation still exists in this state, but only subject to the limitations stated in the case of Powers v. Sumbler, 83 Kan. 1, 110 Pac. 97. The acts of the defendant must be done knowingly and intentionally, for the purpose of alienating the husband’s [wife’s] affection, and must be the controlling cause of alienation.” (p. 402.)
In Curry v. Kline, 187 Kan. 109, 353 P. 2d 508, the burden on the plaintiff was further explained. The plaintiff must prove the wayward spouse did not voluntarily bestow his or her affections on the defendant and that he or she did not voluntarily join with the defendant in creating the so-called “eternal triangle”. If he or she did voluntarily join in the affair then the defendant was not the procuring cause of the alienation.
In Curry v. Kline, supra, it was said:
“To enable a plaintiff to maintain an action of this nature it is necessary he allege and prove that the defendant was the active, controlling cause of the loss of the wife’s love and affection and that the defendant exercised an improper, willful and malicious influence in derogation of the plaintiff’s marital rights. . . . The purpose for the rule is to stop the attempt by some to use tiie courts as a means to exact payment when the defendant’s acts were not the real or controlling cause of the alienation. Regardless of what has heretofore been said and held concerning this type of action, the hard, practical realities of everyday life dictate that where a plaintiff has been the controlling cause of the alienation, or where the wife voluntarily joins with the stranger in creating the so-called ‘eternal triangle’ by bestowing her love and affection upon him, a plaintiff may not shout in a petition that the stranger has alienated the affection of his wife and recover damages from him. Hence, to state a cause of action it is essential that a plaintiff allege and prove he was not at fault in causing the wife’s affections to stray, and that she did not voluntarily bestow her love and affection upon the stranger.” (p. 111.)
Our most recent case of Wilson v. Aylward, 207 Kan. 254, 484 P. 2d 1003, reaffirmed the above case law of this state and overturned the $50,000 judgment which was in favor of the husband of a wayward spouse.
After studying the foregoing cases it becomes apparent that proof of the following issues of fact, among others, must be found in the evidence to support a judgment for alienation of affections.
(1) The defendant must have exercised improper, willful and malicious influence on the wayward spouse in derogation of the plaintiff’s marital rights.
(2) The wayward spouse must not have voluntarily accepted defendant’s advances at the outset of the affair.
(3) The wayward spouse must not have. actively contributed to the procuration by intentionally seeking the companionship and the affection of the defendant.
(4) The plaintiff must prove he or she was not at fault in causing the other spouse’s affections to stray.
(5) The willful and malicious influence of the defendant on the wayward spouse must be proven as the procuring cause of the loss of the love and affection which the wayward spouse formerly held for the plaintiff.
The evidence in the present case is wholly lacking in proof that it was the willful and malicious influence of the defendant that procured the loss of love and affection. There is no showing of any resistance on the part of Madonna to Fischer’s companionship or his attentive advances. There is no evidence that Madonna discouraged his advances. On the other hand it is apparent that Madonna initiated the companionship and was active in intentionally bringing about the alienation. She drove to Salina alone for weekends. She drove to the Osborne fair and became lost. She insisted on attending dances with the Fischers. She used their washing machine at odd hours of the morning. She moved out of her husband’s bedroom early in the period of alienation. She slipped away from her divan and went to the Fischers’ backyard to sleep in a tent. She refused to return home on New Year’s day and Fischer alone was able to persuade her to return home on the following day. When her employer objected to Fischer loitering at her place of employment Madonna quit work.
Clearly Madonna voluntarily accepted defendant’s companionship and advances at the outset. She continued actively and intentionally to seek the defendant’s companionship and advances. There was a complete lack of proof that defendant by willful and malicious acts caused Madonna to lose her love and affection for plaintiff. There can be but one conclusion from the evidence in the case. Madonna acted intentionally from the outset and she was an active contributing cause in this sordid affair. She acted willfully and voluntarily in completing the eternal triangle.
In view of what has been said it becomes the duty of this court to make a final disposition of the case. Other matters raised on appeal require no discussion.
The judgment is reversed with directions to enter judgment for defendant. | [
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Ter Curiam:
The only question involved on this appeal is the construction of paragraph six of the will of Minnie Noel, deceased. Minnie Noel was the wife of John Noel, Jr. At his death all of his property passed to Minnie as his sole heir. John Noel, Jr. was one of the devisees of the will of his father, John Noel, Sr. who died testate. Minnie Noel died testate on November 12, 1968, and her will was admitted to probate. Paragraph six of her will provided as follows:
“I, give, devise and bequeath any and all interest I may have in and to the Estate of John Noel Sr., whose death occurred October 28, 1940 and whose Estate was probated in the Probate Court of Phillips County, Kansas to the living immediate members of the John Noel Sr., family at the time of my death, share and share alike.”
At the time Minnie’s estate came on for final settlement an answer was filed by the appellant, Felicia Noel Brady. She claimed that she was a living immediate member of the John Noel, Sr. family and that she was entitled to share as a member of that class in the benefits provided by paragraph six of Minnie Noel’s will. Felicia Noel Brady is the only child of George Noel who died in 1915. George Noel was the son of John Noel, Sr. The sole question for determination before the district court and this court is whether or not Felicia Noel Brady, as a granddaughter of John Noel, Sr., is included within the class consisting of “the living immediate members of the John Noel, Sr. family” at the time of the death of Minnie Noel.
The district court interpreted paragraph six of Minnie’s will and held that “the living immediate members of the John Noel, Sr. family” at the time of the death of the testatrix, Minnie Noel, included only the children of John Noel, Sr. living at the time of the death of Minnie Noel and did not include Felicia Noel Brady or any other grandchildren of John Noel, Sr.
We have been cited no Kansas cases exactly in point; those that do discuss the terms “immediate”, “family” or other related words do so in a different context and are not helpful. We must, therefore, turn to other authorities.
Black’s Law Dictionary (4th Ed. 1968) defines the word “immediate” to be:
“. . . next in line or relation; directly connected; not secondary or remote.” (p. 884.)
(Bunner v. Patti, 343 Mo. 274, 121 S. W. 2d 153, 155.) In the same legal dictionary the term “descent” when used in connection with the word “immediate” is defined as follows:
“. . . with reference to the line of pedigree or consanguinity, a descent is often said to be immediate, when the ancestor from whom the party derives his blood is immediate, and without any intervening link or degrees; and mediate, when the kindred is derived from his mediante altero, another ancestor intervening between them.” (p. 531.)
(Furenes v. Mickelson, 86 Iowa 508, 53 N. W. 416.)
The term “family” is defined as follows:
“In most common use, the word implies father, mother, and children, immediate blood relatives.” (p. 728.)
(Collins v. Northwest Casualty Co., 180 Wash. 347, 39 P. 2d 986, 989; State ex rel. Kemp v. Arnold et al., 234 Mo. App. 154, 113 S. W. 2d 143, 146; Franklin Fire Ins. Co. v. Shadid, 68 S. W. 2d 1030, 1032 [Tex. Com. App.].) Similar definitions restricting the term immediate family to include only parents, wife, children, brothers and sisters and not grandchildren may be found in Ballentine’s Law Dictionary (1948 Ed.) Other authorities to the same effect are Higgins v. Safe D. & T. Co., 127 Md. 171, 96 A. 322 and White v. White, (1963 Ky.) 365 S. W. 2d 732. Appellant cites no authorities on the subject to the contrary.
We find no error in the ruling of the court below in its holding that the appellant, Felicia Noel Brady, was not within the class designated as “the living immediate members of the John Noel, Sr. family” at the time of the death of the testatrix, Minnie Noel.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Foth, C.:
This workmens compensation case is here for the second time. In Collins v. Kansas Milling Co., 207 Kan. 617, 485 P. 2d 1343, we reversed a finding against the claimant because he had not been given notice of a hearing in sufficient time to enable his counsel to be present for oral argument. On remand he was given such a hearing with a result which, while not quite the same as the previous result, was from his point of view equally unsatisfactory. Hence this second appeal.
The accident on which the claim is based occurred on October 27, 1967. Claimant testified that he was entering a pitch dark grain bin when he fell from a ladder some ten to twenty feet, landing on his back in one to two feet of wheat. Two of his fellow workers couldn’t agree as to whether he then complained of the injury: one said he did no further work after his fall, had to be helped out of the bin, and then lay on the ground; the other said he worked in the bin, shoveled other grain after he got out, and didn’t mention any injury until several days later.
The workmen’s compensation examiner found that the claimant had failed to establish an accidental injury and denied compensation. The director found the contrary, and entered an award for temporary total disability. The district court, on its first consideration of the record, agreed with the examiner and found no accidental injury.
On remand, after our reversal, the district corut’s finding was that there had been an accidental injury, but that claimant’s disability ended on December 20, 1967. In this appeal claimant ruges that this finding was not based on substantial, competent evidence.
The finding was based in part on claimant’s own testimony. He related that he was fired the day of the accident and his employer refused to authorize medical treatment. He attempted to secure medical treatment on his own, but the doctors he approached refused to treat him. He finally consulted counsel in Wichita, who arranged for him to see Dr. Ernest R. Schlacter. For about a week, that physician gave him shots, medication, and physical therapy of his back. On December 20, 1967, according to claimant, Dr. Schlacter released him to go back to work. Neither party introduced any firsthand evidence of Dr. Schlacter’s diagnosis or findings.
A week later on December 27, 1967, at the behest of the respondent, claimant was examined by Dr. Albert W. Shiflet, an orthopedic surgeon of Wichita. In his report Dr. Shiflet concluded:
“Opinion: Insufficient objective findings to substantiate this patient’s subjective complaints of low back pain. In my opinion, there is no present or permanent disability in Mr. Collins’ back attributable to an accident such as he described as having occurred on 27 October, 1967.”
About two weeks after that, on January 11, 1968, claimant saw Dr. M. E. Pusitz, an orthopedic surgeon of Topeka. In his report Dr. Pusitz’s diagnosis was:
. . Lumbosacral and sacro-iliac strain. Indications: Either manipula tion of the spine routine, or proper support, and physiotherapy and muscle education. Disability: At this time, there is a temporary total disability for heavy laboring type of work.”
Finally, on April 24, 1968, claimant was examined by Dr. Eugene E. Kaufman, a “neutral” physician designated by the examiner. In his report Dr. Kaufman stated that he could find no organic injuries. As to subjective complaints, he reported that if claimant was distracted he wouldn’t notice pounding on areas in which he claimed tenderness when fully aware of the doctor’s manipulations. In his deposition Dr. Kaufman testified:
“Well, I can’t say 100% this man is actually malingering, certainly. He, in my opinion, showed nothing that I could find anything objective as far as any organic disability is concerned. I think he’s disabled by his symptoms, and what they are caused by, I think, is open to some speculation. I think once this lawsuit is settled he’s going to be infinitely better.”
In sum, the trial court had before it on one side (1) claimant’s testimony that after a week of treatment his own doctor had released him on December 20 to go back to work, (2) Dr. Shiflet’s finding of “no organic injury” a week later, and (3) Dr. Kaufman’s strong intimation that claimant was malingering. On the other side it had Dr. Pusitz’s finding of lumbosacral and sacroiliac strain. We think there was ample competent evidence to support the trial court’s finding that claimant’s disability ended no later than December 20. That being so, the finding cannot be disturbed on appeal. (Coleman v. Rockwell Manufacturing Co., 206 Kan. 774, 482 P. 2d 52 [1971]; Dolan v. Steele, 207 Kan. 640, 485 P. 2d 1318 [1971]; Schmidt v. Jensen Motors, Inc., 208 Kan. 182, 490 P. 2d 383 [1971]; 5 Hatcher’s Kansas Digest, Workmens Compensation, § 137; 9C West’s Kansas Digest, Workmen’s Compensation, § 1935.)
In addition to the foregoing argument as to the merits of his case, claimant complains bitterly of the procedural steps which led to the trial court’s second consideration of the claim.
Our opinion in Collins I, supra, was filed on June 12, 1971. After receipt of the opinion but before the mandate was filed the Honorable Howard C. Kline, administrative judge of the Sedgwick county district court, set the matter for hearing before the Honorable Thomas C. Raum, Jr., on July 6, 1971, and notified claimant’s counsel of the setting by telephone. Claimant requested a continuance, but Judge Kline refused to grant such a continuance unless claimant withdrew a demand for compensation which he had served pursuant to K. S. A. 44-512a.
Just when that demand had been served does not appear in the record, nor does the manner in which Judge Kline learned of it— claimant deduces that there must have been an ex parte communication to the judge from respondent’s counsel. Be that as it may, it is apparent that claimant hoped that the statutory twenty days from his demand would elapse without payment or further judicial action. If so, the entire award might have become due and collectible in a separate action, and this proceeding might have become moot. (Compare Casebeer v. Alliance Mutual Casualty Co., 203 Kan. 425, 454 P. 2d 511 with Kissick v. Salina Manufacturing Co., Inc., 204 Kan. 849, 466 P. 2d 344. See, also, Griffith v. State Highway Commission of Kansas, 203 Kan. 672, 456 P. 2d 21.)
When Judge Kline refused the requested continuance claimant sought to achieve the same result by an action filed in the United States District Court for the District of Kansas. We do not know the grounds there alleged for relief, but on July 2, 1971, that court temporarily restrained the parties from proceeding further in this case until after July 12, 1971. The federal court declined to restrain Judges Kline and Raum, but the substantive effect of the order was a ten day stay of the state court proceedings. Unfortunately from the claimant’s point of view, the stay also held in abeyance any obligations that might otherwise have arisen under K. S. A. 44-512a.
On July 13, 1971, upon the expiration of the federal stay, Judge Kline once again set the matter for hearing and notified counsel. This time the case was reassigned to Judge Robert T. Stephan, who had rendered the original decision. The hearing date was July 16, 1971.
Claimant’s counsel immediately prepared and mailed for filing a document entitled “Motion for a Continuance and Disqualification of the Administrative Judge to Hear this Motion or Take Further Action Pertaining to this Appeal.” The motion recited in substance the foregoing procedural steps taken since June 12, 1971, when our first opinion was filed, and alleged that if it were not granted a duplication of lawsuits would result. The motion also asked that the administrative judge disqualify himself from hearing the motion or rescheduling the cause. In support of this portion of the motion counsel submitted his own affidavit in attempted compliance with our disqualification statute, which now appears as K. S. A. 1971 Supp. 20-311d et seq., and which had become effective two weeks earlier on July 1, 1971. (Its amendment by Laws 1972, ch. 97 is not material.)
No action was taken on this double-barrelled motion until the scheduled hearing before Judge Stephan on July 16. There counsel conceded that his motion for a continuance was based solely on his desire to let his demand under 44-512a ripen into an irrefutable obligation. He made no claim that he was “not ready” for trial in the usual sense of being unprepared to present either the law or the facts. Indeed, considering the age of the case he could not have made such a claim with a straight face. As part of his argument on the motion claimant contended that his affidavit of bias and prejudice against Judge Kline, the administrative judge, should invalidate that judge’s previous action in setting the case for trial, and a continuance should have been granted for that reason. Also, he urged that the disqualifying effect of the affidavit should have been extended to Judge Stephan, the trial judge, although he stated that he had no objection to Judge Stephan’s hearing the case on the merits. The trial judge found that the matter had been regularly set and overruled the motion.
On appeal all of these objections to the trial court’s reaching the merits when it did are urged as error. Paraphrasing his points on appeal, they are: (1) the affidavit of prejudice should have precluded the administrative judge from assigning the case and setting it for trial; (2) the setting of the case for trial by the administrative judge amounted to an overruling of the motion for continuance, and was done in defiance of the affidavit of prejudice; and (3) the bias of the administrative judge prevented the claimant from receiving a fair hearing on his motion for a continuance, depriving him of due process and the equal protection of the law.
As may be seen, all three of these points are interrelated. Each depends on the effect to be given to an affidavit of bias or prejudice directed solely at an administrative judge and not at the trial judge.
We recently examined at length the meaning and application of the disqualification statute, K. S. A. 1971 Supp. 20-311d et seq., in Hulme v. Woleslagel, 208 Kan. 385, 493 P. 2d 541. We there held, inter alia, that “an affidavit to disqualify a judge for bias or prejudice must be made by the party litigant rather than by his attorney.” (Syl.) The fact that the affidavit here was made by counsel and not by the party litigant made it insufficient on its face.
But even if claimant himself had made the affidavit it would still have been insufficient because it was directed at the wrong judge. There was no suggestion of prejudice on the part of Judge Stephan, who heard the case on the merits — such an idea was expressly disclaimed. The affidavit was directed exclusively toward Judge Kline, whose sole function was to assign the case and schedule a trial date.
Under the statute, an affidavit directed against an administrative judge does not absolutely preclude him from taking further action. Instead, the statute requires the administrative judge, after the affidavit is filed, to assign the case to another judge — a requirement inconsistent with claimant’s position that the administrative judge can take no action after an affidavit is filed. (We pass over the fact that in this case the assignment had been made on July 13, while the affidavit wasn’t filed until July 14.)
Further, the statute keys the time for filing the affidavit to, among other things, the receipt of notice of “the judge to which the case is assigned or before whom the case is to be heard.” (K. S. A. 1971 Supp. 20-311Í.) What is clearly contemplated here is an affidavit against the judge who will hear the case on the merits. It is when the merits are to be reached that judicial bias or prejudice is most likely to affect substantive rights. It is those rights, after all, with which courts are primarily concerned, and which we believe the legislature intended to protect when it enacted the disqualification statute. (Although the appearance of fairness is important, too. See Hulme v. Woleslagel, supra, passim.)
Militating in the same direction is the limitation that “No party shall be granted more than one change of judge in any action.” (K. S. A. 1971 Supp. 20-311f.) If, by filing an affidavit, a party had secured a new administrative judge to take care of preliminary administrative functions, he would be helpless if the case were later assigned for trial to a judge whom the party regarded as biased. Also, to have administrative judges pro tern to handle the assignment of preliminary matters in individual cases would wreak havoc with the district-wide calendar control sought to be accomplished through the functions of the administrative judge. We cannot believe the legislature intended either result.
In sum, we do not think the statute contemplates an affidavit directed against a judge acting solely in his capacity of administrative judge, and that if such an affidavit is filed it will not preclude that judge from proceeding with his purely administrative functions such as assigning the case or setting it for trial.
If it be suggested that bias on the part of an administrative judge may result in a precipitous, oppressive setting of a case, we would point to K. S. A. 60-240. Under that statute the trial court may “for good cause shown” grant a continuance “at any stage of the proceedings;” the grant or denial of a continuance is discretionary with the trial court in all cases. This is a codification of the rule recognized in this state for over one hundred years. See Ed. Ass’n v. Hitchcock, 4 Kan. 36 (1866); State, ex rel., v. Showalter, 189 Kan. 562, 570, 370 P. 2d 408 (1962).
The litigant who feels unduly hurried, then, may seek relief from the trial judge who, presumably, is free from bias conceived by the litigant to have motivated the administrative judge in making the premature setting. We summarized the state of affairs at this point in a lawsuit in Fouts v. Armstrong Commercial Laundry Distributing Co., 209 Kan. 59, 495 P. 2d 1390, Syl. ¶¶ 1-3:
“1. Under the provisions of K. S. A. 60-240; the assignment of cases for trial and the granting or refusing of continuances rests in the sound discretion of the trial court; such discretion, however, is not without limitation and is subject to review.
“2. Where the effect, for practical purposes, of the denial of a motion for a continuance of a trial is to deprive a party of his day in court, a trial court’s discretion is to be exercised in a sound and legal manner and not arbitrarily or capriciously and in ruling on a motion for continuance, under such conditions, a court must consider all attending circumstances, particularly such matters as the applicant’s good faith, his showing of diligence or the absence thereof, previous proceedings and the timetable of the lawsuit.
“3. In seeking the continuance of a case assigned for trial it is incumbent upon the applicant to affirmatively show due diligence with respect to all grounds upon which the continuance is sought.”
Applying those principles here, claimant’s affidavit (even assuming it had been both signed by the litigant and filed before the administrative judge set the case) would not have prevented the administrative judge from proceeding to assign the case and set it for hearing in accordance with the applicable rules of court, as he did. Once this was done, claimant’s motion for a continuance became a matter for determination by the trial judge in the exercise of his judicial discretion. If the motion had shown “good cause,” its denial resulting in prejudice might have constituted an abuse of discretion subject to review here.
There were, however, no substantive grounds for a continuance alleged — the whole purpose of the motion was admittedly for mere delay, to gain for claimant a supposed tactical advantage in a collateral matter. We have said that where the facts or circumstances are such as “to raise a judicial suspicion that the motion was made for mere delay, and to hinder the administration of justice, there is no abuse of discretion in denying the continuance.” (Powder Co. v. Bilby, 104 Kan. 769, 180 Pac. 735, Syl. ¶ 2.) Here there was more than “judicial suspicion” of the motive for the motion, there was certain knowledge.
It follows that there was no disqualification of either the administrative judge or the trial judge to perform their respective functions, and that the refusal to grant a continuance was not error for any of the grounds alleged.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal from a conviction on two counts of grand larceny (K. S. A. 21-533). Defendant was committed to the Kansas State Penitentiary for confinement according to law. He was released on bond pending an appeal to this court.
On November 6, 1969, the defendant and John M. Kearns were stopped by Officer Miguel B. Garcia in Lawrence, Kansas. The automobile in which they were riding fit the description of an automobile being sought in connection with a theft of shoes from the Lawrence Pay-Less Shoe Store. Kearns was driving and the officer asked him for his driver’s license which he was unable to produce. The officer then advised Kearns he was going to issue a ticket for driving without a license. During this exchange, and while standing outside the automobile, Officer Garcia observed some shoes and drills in cardboard boxes in the back seat of Kearns’ car, and some records in the front seat. All this time the defendant was seated in the front seat of the Kearns automobile.
A clerk from the shoe store identified both the defendant and Kearns as being the same persons who had taken the shoes. Officer Garcia then placed both the defendant and Kearns under arrest for the theft of the shoes. At the scene of the arrest, Officer Lemon observed two drills in the back seat and a stack of records on the front seat of the automobile. After Officer Lemon received express permission from Kearns to drive the automobile to the station, the defendant and Kearns were removed to the Lawrence police station by Officer Garcia. Officer Lemon then took custody of the car and the merchandise within it and, pursuant to Kearns’ permission, he drove the automobile to the police station. When Officer Lemon arrived at the station about ten or fifteen minutes after leaving the scene of the arrest he removed the merchandise from the automobile.
Subsequently, it was determined that the two drills were missing from the Coast-to-Coast Store in Lawrence, and that the records (83) were from the Kroger Family Center in Lawrence. The defendant and Kearns were charged in two counts with the theft of the drills and the records by complaint on November 7, 1969, and were arrested on the same day.
The defendant was charged with petty larceny in connection with the theft of the shoes and he entered a plea of guilty on December 23, 1969, in the municipal court.
The defendant filed several pretrial motions including a motion to suppress, motion to discharge, motion to dismiss and abate, and a motion for specific findings of fact and conclusions of law, all of which were overruled. All of the motions were renewed just before the trial and again overruled.
At the trial all of the above facts concerning the defendant’s arrest and the seizure of evidence were developed by testimony. Other evidence at the trial revealed that the 83 records, state’s Exhibit No. 3, were definitely from the Kroger Family Center, based upon the identification of tags on each individual record which are unique to that store. The value of the records was set between $160.00 and $200.00, and although the identifying witness, Larry Leffingwell, manager of the Kroger Family Center, could not determine whether specific records were missing, to his knowledge 83 records were not sold on November 6, 1969, and he believed the records were stolen. Leffingwell indicated an individual purchasing 83 records would be given a receipt and such a receipt would be lengthy. State’s Exhibit No. 3 was received into evidence over the defendant’s objection.
The trial also revealed that the two drills found in the car in which the defendant was a passenger, state’s Exhibits No. 1 and No. 2, were definitely from the Coast-to-Coast Store and that they were missing on November 6, 1969. Robert Zimmerman, owner and manager of the Coast-to-Coast Store identified the drills, and the witness also identified Kearns as being the person he saw on November 6, 1969, in the front of his store where the drills were kept. The value of the drills was placed at $27.00 each. The state’s Exhibits No. 1 and No. 2 were received into evidence over the defendant’s objection.
The state rested and the defendant moved for a judgment of acquittal. The defendant renewed his motion for acquittal after presenting two defense witnesses. Both motions were overruled. All of the points raised by the defendant were renewed in his motion for a new trial.
The defendant first argues that the court erred in overruling defendant’s pretrial motion to suppress evidence seized without the benefit of a search warrant, from the automobile in which defendant was a passenger. The defendant cites such cases as Terry v. Ohio., 392 U. S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; Chambers v. Maroney, 399 U. S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975, reh. den. 400 U. S. 856, 27 L. Ed. 2d 94, 91 S. Ct. 23; Coolidge v. New Hampshire, 403 U. S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022, reh. den. 404 U. S. 874, 30 L. Ed. 2d 120, 92 S. Ct. 26; Jones v. United States., 357 U. S. 493, 2 L. Ed. 2d 1514, 78 S. Ct. 1253; Warden v. Hayden., 387 U. S. 294, 18 L. Ed. 2d 782, 87 S. Ct. 1642; Harris v. United States., 331 U. S. 145, 91 L. Ed. 1399, 67 S. Ct. 1098, reh. den. 331 U. S. 867, 91 L. Ed. 1871, 67 S. Ct. 1527; Abel v. United States., 362 U. S. 217, 4 L. Ed. 2d 668, 80 S. Ct. 683, reh. den. 362 U. S. 984, 4 L. Ed. 2d 1019, 80 S. Ct. 1056.
Defendant argues that from these decisions the search and seizure in this case was invalidated because the officers had no probable cause to believe the property was contraband, the seizure of the property was not incident to a lawful arrest, the seizure of the property was in no way connected with the arrest which was made, and there were no exigencies in connection with the incident which supported a warrantless search and seizure. Despite defendant’s able presentation of this point, we are controlled by State v. Edwards, 197 Kan. 146, 415 P. 2d 231. The factual situation in the instant case is similar to Edwards, where we said:
“The car which was the object of the search and which yielded the purloined property was McGuire’s, not the defendant’s. It was neither owned by Edwards nor was it in his possession or under his control. Edwards did not claim any interest in the car or in the property taken therefrom. Consequently, he may not be heard to protest the search.” (p. 147.)
See, State v. Sumner, 210 Kan. 802, 504 P. 2d 239.
We should point out that the defendant was a passenger in a car driven by the owner. He claimed no ownership or interest in the automobile and likewise claimed no ownership or interest in the property found in the automobile. We can draw no distinctions between the facts in Edwards and the facts in this case. The trial court did not err in failing to suppress this evidence.
Defendant complains of the use of the so-called “implied admissions” theory to establish corpus delicti in this case. This is another name for the theory, long followed in Kansas, that unexplained possession of recently stolen property provides the basis for an inference that the possessor is also the thief. The “unexplained possession” rule or “doctrine of implied admissions”, as the parties refer to it in this case, is not a rule of law. It does not in itself establish the fact of a theft. The prosecution must still prove the larceny occurred; that is, it must prove corpus delicti. In State v. Aten, 203 Kan. 920, 457 P. 2d 89, we held that corpus delicti in larceny consists of two elements: “. . . (1) that the property was lost by the owner; and (2) that it was lost by a felonious taking, each of which may be established by circumstantial evidence.” (Syl. ¶ 3.) Since corpus delicti may be proven by circumstantial evidence, the “implied admissions” theory need not be relied on for its establishment.
There is no question that defendant was discovered in unexplained possession of recently stolen property valued at more than fifty dollars. Due to lack of witnesses to any acts of larceny and due to the inventory methods of both stores, it is impossible to specify when the items were taken, whether there was more than one larceny, how much was taken in each larceny, and whether there was more than one taking from each store. Although the “implied admissions doctrine” supplies a basis for an inference that the possessor stole the property, it does not supply a basis for an inference that the property was taken in a particular manner or at a particular time.
The defendant assigns as error the failure of the trial court to give an instruction on petty larceny. In Count I the defendant is charged with the theft of two drills, each worth the sum of $27.00. If the drills were stolen as one incident the resulting crime is grand larceny. If the drills were stolen at different times and by independent acts the theft of each would be petty larceny. Likewise, in Count II if the records were stolen in one incident the resulting crime would be grand larceny. However, if the records were stolen at different times by independent acts and on no one occasion did the stolen records exceed the value of $50.00, their theft would be the result of several acts of petty larceny.
The state urges that the defendant was guilty of grand larceny or he was guilty of nothing. The state claims that if the proof showed that defendant stole the records one by one or the two drills one at a time it would still require that the state prosecute for grand larceny. The state also claims that the taking of the two drills from the store and the taking of the 83 records from the store, even if accomplished by individual asportation of each item, would still indicate one design or scheme to deprive the owner of his property and therefore would justify a finding of grand larceny. The state also points out where the evidence indicates guilt of higher degree and does not tend to establish guilt of a lower degree it is not error to omit instructions on the lower degree.
The “single larceny doctrine” permits a trier of fact to consider a series of larcenies, embezzlements or other thefts to be the result of a single larcenous scheme. If the total amount stolen is valued above the statutory amount, the defendant can be found guilty of grand larceny. In State v. Hall, 111 Kan. 458, 207 Pac. 773, it was invoked to find a defendant charged with a series of petty thefts from several departments of a single store guilty of grand larceny. The court held that the evidence supported the jury’s decision that the larcenies occurred in a single day as part of a single plan. State v. Gordon, 146 Kan. 41, 68 P. 2d 635, involved a series of embezzlements over a period of months, each of which was less than the amount necessary to support grand larceny. The single larceny doctrine was invoked. The court said:
“. . . If the practice was to take a series of amounts so that no one taking exceeded twenty dollars, it would be a fair inference from the evidence that the takings were the result of a scheme or plan. . . .” (p. 48.)
Both of these cases speak of the “single larceny doctrine” as a rule of evidence which will support a jury finding of grand larceny from evidence of a series of petty thefts which the jury infers to be part of a single plan, scheme, or single larcenous impulse.
When property is stolen by a succession of takings from the same owner and from the same place, each taking is a separate crime if it results from a separate impulse or intent. However, if it appears that a single incriminating impulse or intent is involved in the successive talkings, they constitute a single larceny.
The record in this case discloses evidence of the following facts:
"(1) Two drills missing from the Coast-to-Coast Store were found in the appellant’s possession, as were 83 record albums from the Kroger Family Center.
“(2) When confronted with the chance to explain the presence of the goods, the appellant and the driver disclaimed knowledge of the presence of the items or ownership of the same.
“(3) The driver, Kearns, had been seen in the Coast-to-Coast Store in the area where the power drills were kept. . . .
“(4) No receipts for any of these items were found in the automobile, nor were they produced.
“(5) To the knowledge of the witness, Larry Leffingwell, manager of the Kroger Family Center, Lawrence, Kansas, no one purchased 83 record albums on November 6, 1969, but that anyone making such a purchase would receive a receipt and that such a receipt would be long.”
From these facts the state requested the jury to conclude that the two drills were stolen as the result of a single continuing criminal impulse or intent on the part of the defendant, and that the 83 records were stolen in like manner. The established facts are not persuasive as a basis for inferring in what manner and at what times the property was stolen. The jury was instructed that the unexplained possession of recently stolen goods created a basis for inferring the possessor was the thief. Using this inference, the jury might logically conclude the defendant was guilty of theft and that he should be punished. The jury might also conclude from the facts that the state has failed to establish the theft of the items was the result of a single continuing criminal impulse or intent. In this situation, defendant could have been found guilty of petty larceny. In the absence of an instruction on petty larceny the jury might have convicted the defendant of grand larceny even though they were not satisfied all the elements of grand larceny had been proven. To insure fundamental fairness, an instruction on petty larceny should have been given.
The defendant also claims error in failing to find he had been placed in jeopardy by his plea of guilty to a petty larceny charge in connection with the stolen shoes. The defendant argues that the prosecution for stealing the shoes arose out of and from the same criminal episode, design, transaction, and occurrence. The defendant’s contention is without merit. Our position is well stated in 50 Am. Jur. 2d, Larceny, § 3, pp. 154,155, as fofiows:
“. . . [I]t is well settled that if, on the same expedition, there are several distinct larcenous taldngs, as the taking of the goods of one person at one place, and afterward the taldng of the goods of another person at another place, and so on, as many crimes are committed as there are several and distinct takings, and this is true although the thefts may all have been committed in rapid succession and in pursuance of a formed design to steal. . . .”
The proof pertaining to the charge of the theft of property from the Pay-Less Shoe Store was patently different from the proof necessary to estabEsh the theft of drñls from the Coast-to-Coast Store and the theft of records from the Kroger Family Center. In State v. Pierce, et al., 205 Kan. 433, 469 P. 2d 308, we said the test for determining identity of offenses is, “. . . whether each requires proof of a fact which is not required by others.” (Syl. ¶ 3.)
The judgment is reversed and the case remanded with directions to grant a new trial. | [
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|
The opinion of the court was delivered by
Prager, J.:
This is an action in which the appellant, Alcidene Warren, seeks to recover damages from the appellee, T. G. & Y. Stores Company, for personal injuries suffered by Mrs. Warren when she tripped and fell over a box of merchandise which had been placed in an aisleway by employees of the store. The case was tried to a jury. At the close of appellant’s evidence the district court sustained a motion in favor of the appellee for a directed verdict on the ground that the appellant was contributorially negligent as a matter of law which barred her recovery. The appellant’s motions to set aside the judgment and for a new trial were overruled and the appellant has brought a timely appeal to this court.
The facts in this case are not in dispute. We will accept the testimony of appellant Alcidene Warren as true in determining the sufficiency of appellant’s evidence to make a prima facie case and to go to the jury.
Appellant, Mrs. Warren, entered the store of appellee in Wichita, Kansas, on the evening of October 23, 1969, on her way home from work. Her purpose for stopping at the store was to purchase some wrapping paper and paper plates for a birthday celebration for her children. The store was relatively new, having opened about one year before appellant was injured. Appellant had patronized the store about once a week during the past year. The place of residence of appellant and her husband was within a mile of the location of the store.
Appellant testified that during the times she was in the store before the accident occurred, she had seen boxes or displays within the aisleways and that this was probably an occasional occurrence. She stated that in her experience in similar retail establishments this was probably true generally and that she sometimes did find boxes of merchandise in the aisleways. On the day she was injured Mrs. Warren testified that her husband waited for her in the family car parked in a parking lot located on the east side of the store. After she entered the store, appellant purchased one package of paper plates and one small piece of wrapping paper. At the time of her fall she was carrying these items together with her purse in her hands. There was nothing about these packages that interfered with her vision. Appellant testified that she was in somewhat of a rush on the day the accident occurred in order to get on with the birthday party for her children. After she fell she observed a box in the aisleway which she described as 6" to 8" high, a foot wide and 1% feet long. There was nothing else in the aisleway to trip her. Appellant testified that she never saw the box before she fell over it and that she rounded the comer, took three or four steps and was heading for the check-out stand when she fell. It is undisputed that the aisleway was four feet wide. The floor consisted of brown tile and appellant had no complaint about the lighting in the store. The appellee T. G. & Y. stipulated at the trial that the box of merchandise which caused Mrs. Warren to fall belonged to the store and was placed in the aisle by employees of the store. It is undisputed that as a result of her fall Mrs. Warren suffered a fractured bone in the elbow joint of her left arm which caused her personal injury and damages.
On the basis of the testimony of Mrs. Warren the trial court found that appellant was negligent as a matter of law and thereupon sustained appellee’s motion for a directed verdict. In taking such action the trial judge reasoned as follows:
“The evidence shows this to have been a wide, well lighted aisle, and it also shows the plaintiff was fixing her attention on the exit and did not see a carton of merchandise which was on the floor over to one side and in plain view to be seen. Under the circumstances she was bound to use ordinary care for her own safety and is not to be excused for not seeing that which was in plain view to have been seen. There is no evidence of her attention having been distracted by displays or other situations in the store except her desire to exit quickly.
“Judgment, therefore, is rendered in favor of the defendant on the ground of contributory negligence.”
We will assume for purposes of this appeal that the evidence of appellant was sufficient to raise a genuine issue of fact on the question of appellee’s negligence. It was stipulated by the parties that Mrs. Warren was a business invitee at the T. G. & Y. Store. It is undisputed that the box of merchandise was placed in the aisle by employees of the store and hence there is no question of adequate notice to the proprietor involved.
We have held many times that although the proprietor of a store is not an insurer of die safety of his customers he is obligated to exercise ordinary care to keep the store in a reasonably safe condition so as not to cause injury to business invitees. (Elrod v. Walls, Inc., 205 Kan. 808, 473 P. 2d 12; Little v. Butner, 186 Kan. 75, 348 P. 2d 1022.) In the case at bar the trial court made no finding as to the sufficiency of the evidence to prove negligence on the part of the appellee as proprietor of the store. That being true, we will not determine this case on that issue but will turn our attention to the question of whether or not the appellant, Mrs. Warren, was guilty of negligence which barred her recovery as a matter of law.
Ordinarily, the existence of contributory negligence is a question of fact, it being for the jury to determine from the circumstances of each particular case whether the conduct of a party was such as would be expected of a reasonably prudent person. In ascertaining whether as a matter of law a plaintiff is contributorially negligent, the evidence and all inferences that may reasonably be drawn therefrom must be accepted as true and considered in the light most favorable to the plaintiff; and if the facts be such that reasonable minds might reach different conclusions therefrom, the issue of contributory negligence must go to the jury. (Schenck v. Thompson, 201 Kan. 608, 443 P. 2d 298; Johnston, Administratrix v. Ecord, 196 Kan. 521, 412 P. 2d 990; Bender v. Bulger Cadillac-Oldsmobile, Inc., 208 Kan. 72, 490 P. 2d 361.)
The rights and responsibilities of a business invitee in a retail store have been thoroughly discussed in our opinions. We have held that upon entering a retail store, a mature and normal person must make reasonable use of his faculties for his own protection, and, in the interest of his own safety, he is required to use that degree of care which a person of ordinary prudence would exercise under the same or similar circumstances. (Reese v. Abeles, 100 Kan. 518, 164 Pac. 1080; Little v. Butner, supra.) Where a customer, in the proper pursuit of his business, passes along aisles between counters where merchandise is displayed, he would necessarily be required to pay close attention to the shelves and would not ordinarily be expected to watch the floor and each step taken. In the absence of circumstances which indicate or which reasonably should indicate the existence of defects or dangers, he may assume the premises are safe for the use to be made of them under the invitation to be present in the store. In other words, it is not contributory negligence for a business invitee upon the premises to fail to look out for danger when there is no reason for an ordinarily prudent person to apprehend a peril. (Little v. Butner, supra.)
The sole issue presented to the court in the case at bar is whether or not under appellant’s own testimony and admissions she was guilty of negligence which contributed to her injury as a matter of law. Under the particular facts and circumstances here we hold that the appellant is barred from recovery by reason of her own contributory negligence and that the trial court was correct in sustaining appellee’s motion for a directed verdict. In taking this position we emphasize the following factors in the evidence which in our judgment justify this conclusion:
(1) Appellant was in a “rush” or “hurry.”
(2) During the year prior to her injury appellant had occasionally observed boxes of merchandise in the aisleway of this store.
(3) Appellant tripped and fell over a box of merchandise located in plain sight against one side of the aisleway in which she was walking.
(4) Appellant’s vision was not obscured. Appellant had no bundles or packages in her arms which interfered with her vision.
(5) The box over which she tripped was 6" to 8" high, one foot wide and 1% feet long and could not be classified as a latent hazard.
(6) The box of merchandise had not been placed close to the corner of the aisleway since the appellant had taken three or four steps after rounding the comer before she fell.
(7) The aisle was four feet wide and there was plenty of room for appellant to avoid the box.
(8) At the time appellant tripped over the box her attention was not distracted by her looking at the merchandise or by her making inquiry to an employee of the store. The check-out counters were in plain view ahead of her as she proceeded down the aisle.
(9) The aisle where appellant fell was adequately lighted.
(10) The store was not crowded at the time appellant fell, which might have justified her failure to observe the box.
In their briefs the appellant and appellee cite numerous cases both in Kansas and other jurisdictions involving the question of contributory negligence on the part of a customer in a retail store. There are comprehensive annotations of cases on this subject in 26 A. L. R. 2d 675 and in 61 A. L. R. 2d 110. Some of these cases have held that the customer’s contributory negligence was a question for the jury; others have held the particular customer to be negligent as a matter of law. Many of the decisions cannot be reconciled.
A careful analysis of these and our own cases has led us to the conclusion that in those cases where it was held that the customer’s contributory negligence was a question for the jury to determine, there were usually factors present which either distracted the customer’s attention or limited the customer’s ability to observe the hazard, thereby excusing the failure of the customer to observe the hazard. In some cases the customer was engaged in looking at merchandise displayed on the shelves at the time she fell; hence it was held that the customer’s negligence was a question to be determined by the jury. Typical examples of such cases are Marietta v. Springer, 193 Kan. 266, 392 P. 2d 858 (customer inspecting Christmas trees); Little v. Butner, supra. (customer’s attention attracted by merchandise); Brown v. Slack, 159 Neb. 142, 65 N.W. 2d 382 (looking for merchandise); Campbell v. Safeway Stores, Incorporated, 15 Utah 2d 113, 388 P. 2d 409 (searching display shelves for dog food); Miller v. Safeway Stores, 219 Or. 139, 346 P. 2d 647 (looking at merchandise); Big Apple Super Market v. Briggs, 102 Ga. App. 11, 115 S.E. 2d 385 (selecting purchases from a display).
In a number of the cases where recovery has been permitted the hazard which caused the injury was a latent condition constituting a not-easily-seen hazard. (Marietta v. Springer, supra, (ramp); Little v. Butner, supra (grease from meat fat on the floor); Bingham v. Hillcrest Bowl, Inc., 199 Kan. 40, 427 P. 2d 591 (wet terrazzo floor); Reese v. Abeles, supra (open stairway in floor partially obscured in semidarkness caused by piles of merchandise stacked thereabout); Autry v. Walls I.G.A. Foodliner, Inc., 209 Kan. 424, 497 P. 2d 303 (small base for parking lot cone); Bender v. Bulger Cadillac-Oldsmobile, Inc., supra, (unpainted curb which blended into surrounding parking lot); McHargue v. Great Atlantic & Pacific Tea Company, 209 So. 2d 283 (Fla. 1968) (cardboard divider not readily discemable).)
In some of the cases where the customer recovered, his attention had been distracted for some other legitimate reason. (Robicheau v. Supreme Markets, Inc., 333 Mass. 608, 132 N. E. 2d 401 (turning around after inquiring about the price of merchandise at a counter); Autry v. Walls I. G. A. Foodliner, Inc., supra (looking out for moving cars in parking lot). There are also cases where a customer’s vision was obscured at the time he fell. (Little v. Butner, supra, (distracted by a large number of patrons and their children); Bingham v. Hillcrest Bowl, Inc., supra, (customer carrying a tray of doughnuts); Autry v. Walls I. G. A. Foodliner, Inc., supra. (customer carrying packages in her arms).) Finally, in at least two of the Kansas cases poor lighting excused the customer’s inability to observe. (Bass v. Hunt, 151 Kan. 740, 100 P. 2d 696 and Campbell v. Weathers, 153 Kan. 316, 111 P. 2d 72.) In Campbell the restaurant operator left an open hole in an unlighted passageway to the toilet and the customer stepped over a pasteboard box directly into the open hole.
We have concluded that the factual circumstances in the case at bar do not furnish an excuse for appellant’s failure to observe the box over which she fell. In our judgment appellant’s own testimony and admissions justified the finding of the trial court that she was negligent as a matter of law and that such negligence was a contributing cause of her injury.
The judgment is affirmed. | [
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Per Curiam:
The appellant seeks to recover statutory penalties under K. S. A. 44-308 for the refusal of his employers, the appellees, to pay the wages due him at the time he terminated his employment and after proper demand and notice. The penalty is the continur ation of wages at the rate the employee was receiving “until full and complete settlement is made.”
There is no dispute as to the wages due ($72) or the weekly wage ($102) comprising the basis for the penalty.
The employers’ defense is that appellant was indebted to them when he quit in the sum of $80 on a bad check which he took from a customer in violation of the employers’ rules, and on some other items. They claim that the right of offset of the $80 due on the bad check, etc., provided a basis for their claim of an “honest dispute” over the amount due the appellant, and that under the decision in Gawthrop v. Missouri Pac. Rly. Co., 147 Kan. 756, 78 P. 2d 854, they were justified in withholding payment and are relieved of the obligation for the statutory penalty.
Though the amount of the plaintiff’s wage claim was admitted, the trial court submitted it to the jury, along with the defendant’s counterclaim. The juiy allowed the wage claim but denied the counterclaim.
The record is sketchy and the merits of the counterclaim on the check, and the defense to it, do not appear. But the fact of the check having been taken against the employers’ direction, the amount of it, and the fact of its dishonor appear not to have been disputed. There was no response by way of reply to the counter claim. There was no cross-appeal and the jury’s rejection of the counterclaim is final.
While the trial court might, on this record, have held as a matter of law that there was an honest dispute, it saw fit to submit that issue to the jury under an apt instruction. The jury, in answer to a special question, found that there was an “honest dispute” even though they rejected the counterclaim on its merits.
The record shows no objections by the plaintiff to any of the instructions or to the action of the court in submitting the issue of “honest dispute” to the jury.
Thus, the defense of “honest dispute” appears to have been legally resolved in favor of the appellees. At least the appellant cannot complain of it in the absence of a timely objection to its submission to the jury. The finding of “honest dispute” and the rejection of the counterclaim are not inconsistent.
The result is a judgment in favor of the plaintiff for $72 and costs on his petition and a judgment against the defendants on their counterclaim.
The defendants are not liable for the statutory penalties on this record in view of Gawthrop v. Missouri Pac. Rly. Co., cited above.
The judgment of the trial court is affirmed. | [
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Per Curiam:
On May 19, 1967, appellee Roberta L. Childers filed for divorce, division of property and custody of children, but did not ask for alimony. On the 12th of October 1967, the petition was amended to ask for separate maintenance. Separate maintenance was granted, property divided and custody of the children given to the appellee-wife. Appellant-husband was ordered to pay support for the children. No alimony was granted.
On the 17th day of April 1970, the appellee-wife filed a petition for divorce and alimony. The appellant-husband pleaded that alimony was res judicata in that appellee-wife could have obtained alimony in the case filed in 1967. The court granted a divorce and alimony. The appellant-husband appeals from the grant of alimony.
The sole question presented is, did the failure to grant alimony in the 1967 case preclude the court from granting alimony in the 1970 case?
Actions for divorce and separate maintenance are not the same. In separate maintenance the residence requirement of six months is not applicable; there is no waiting period; there is no severance of the- marriage relationship; each is still an heir to the other’s estate; and the parties could resume their marital cohabitation without further ceremony. K. S. A. 1971 Supp. 60-1610 (c) referring to divorce says that alimony may be allowed. Hardesty v. Hardesty, 115 Kan. 192, 222 Pac. 102, separate maintenance was granted together with support for the wife and the children. In a subsequent divorce case, the wife was granted alimony and the husband appealed. We said at page 195:
“The statutory provision under which the order was made contains nothing indicating that such an allowance precludes an award of permanent alimony if a divorce is subsequently granted.”
In LeSueur v. LeSueur, 197 Kan. 495, 419 P. 2d 817, we said at page 499:
“An action for divorce and separate maintenance constituted separate causes of action under the two sections of the old code and they still constitute separate causes of action under the single section of the new code.”
The question of alimony not having been determined in the prior separate maintenance action it was properly before the court in the subsequent divorce case. The motion of the defendant to deny alimony was properly denied. The order of the lower court allowing alimony to the appellee-wife is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
Jefferson Singleton appeals from a conviction and sentence for aggravated robbery as defined in K. S. A. 1971 Supp. 21-3427. He was convicted by a jury and sentenced by the court to imprisonment for not less than 25 years nor more than life. The sentence was imposed after proof of prior felonies.
On appeal appellant questions the general sufficiency of the evidence to support a conviction and attacks the giving of an instruction on the unexplained possession of recently stolen property.
A recitation of the facts established in the evidence is necessary. Steens IGA Foodstore in Wichita was robbed by three black male individuals at 2:15 a. m. on January 20, 1971. A store clerk testified that appellant was one of the three robbers. One of the robbers stuck a gun in the clerk’s back and demanded the money in the cash register. The clerk complied and turned over seventy dollars in currency. The men left the store and the clerk activated a burglary alarm which immediately alerted the police. A policeman, while en route to the store in answer to the alarm, intercepted a large black car which ran a stop sign and passed in front of him at a high rate of speed six blocks from the scene of the robbery. The car was driven by the appellant. During the high speed chase which followed an object was thrown from appellant’s vehicle at a point where a pistol was later found. During the chase several patrol cars began converging on the general area and a police helicopter was called in with a spotlight to follow the chase and to illuminate the area. Appellant finally stopped his vehicle. He and one other individual left the vehicle and fled on foot. Some of the officers who had arrived on the scene followed the fleeing individuals while other officers arrested a man and a woman in the getaway car. The woman was identified as having entered the store to purchase cigarettes shortly before the robbery occurred.
The appellant and the other individual who fled on foot were apprehended. When caught the appellant threw his hands upward releasing currency which scattered on the ground. The currency was retrieved. It was in small bills totaling seventy dollars, the exact amount taken in the robbery.
It is difficult to determine the precise nature of appellant’s complaint on the sufficiency of the evidence. The error claimed is— “Erroneous eyewitness testimony causing a wrongful conviction.”
Appellant was permitted to conduct lengthy cross-examinations of the witnesses which examinations should have indicated to the jury any flaws in their testimony. The testimony of eyewitnesses, who have had a reasonable opportunity to discern the facts of a crime and to learn the identity of the person committing the crime, is clearly relevant testimony. The weight to be given such testimony and the credibility to be accorded eyewitnesses rest within the province of the jury and not the trial or appellate courts. A verdict supported by substantial relevant evidence will not be disturbed by this court on the grounds of insufficiency of the evidence. (State v. Townsend, 201 Kan. 122, 439 P. 2d 70; State v. Wade, 203 Kan. 811, 457 P. 2d 158.)
The final point of error raised by the appellant relates to the following instruction given to the jury:
“The unexplained possession of recently stolen property, when taken in connection with other criminating circumstances, may raise a presumption sufficient to warrant conviction of robbery. But the mere possession of recently stolen property, without any other facts indicative of guilt, is not prima facie evidence that the possessor is guilty of robbery.
"However, such possession, to warrant a conviction by reason thereof, must have been so soon after the time of the commission of the robbery as to render it morally certain that such possession could not have changed hands since the commission of such robbery.
“The question of whether the defendant had possession of recently stolen property, and whether the property was stolen by the defendant are also questions for the Jury to determine from all the evidence admitted in the trial.”
Although a good argument may be made under the facts of this case that this instruction on the unexplained possession of recently stolen property was not helpful to the jury and should not have been given, the real question is whether such an instruction when given constitutes prejudicial error. The property stolen was established to be seventy dollars in currency or bills. The accused was intercepted in flight six blocks from the scene of the robbery. After a high speed chase the accused was apprehended and at the time of his apprehension he was seen throwing seventy dollars in currency or bills into the air, in what may be inferred as an effort to rid himself of evidence which might tend to incriminate him. In view of the direct evidence of appellant’s participation in the crime and his attempt to dispose of the currency, his unexplained possession of the recently stolen property was a circumstance which, by reason of the inference arising therefrom, might support the conviction. The court in the instruction clearly pointed out that mere possession of the property, without other facts indicative of guilt, was not sufficient to support a conviction of robbery. No satisfactory explanation of the possession was attempted to be given by the appellant. The inference arising from the possession together with the evidence of the accused’s participation in the aggravated robbery was sufficient to support the verdict of guilty. This is the general thrust of the instruction as given.
In State v. Henry, 24 Kan. 457, it was held that an instruction on the -unexplained possession of recently stolen currency was proper in a larceny case where the currency was sufficiently identified by the owner as to its nature and amount. There can be little question under the facts of the present case that the seventy dollars in currency which appellant attempted to dispose of when apprehended was the seventy dollars in currency taken from the store a short time before.
It has long been the rule in this state that possession of property recently stolen in a larceny case is sufficient to sustain a conviction of larceny when no explanation of such possession is given. An instruction similar in nature is not erroneous in a burglary case if other evidence has been introduced to establish the burglary and identify the property taken. The inference which may be found from the unexplained possession of the recently stolen property may sufficiently identify the possessor and tie him to the crime which has otherwise been established. (State v. Brown, 203 Kan. 884, 457 P. 2d 130; State v. Kowalec, 205 Kan. 57, 468 P. 2d 221.)
In 2 Wharton’s Criminal Law and Procedure, § 411, p. 31-33, it is said:
“While the possession of recently stolen goods gives rise to an inference that the possessor has stolen the goods, it is not ordinarily proof or prima facie evidence of burglary. There should be some evidence of guilty conduct besides the bare possession of the stolen property, before the presumption of burglary is superadded to that of the larceny. However, such possession is evidence which may be considered with all the other circumstances of the case as bearing on the question whether the defendant committed the burglary, and there is authority that if the possession is unexplained it may support the conclusion of guilt of burglary. Moreover, when goods have been feloniously taken by means of a burglary, and they are immediately or soon after found in the actual and exclusive possession of a person who gives a false account, or refuses to give any account, of the manner in which the goods came into his possession, proof of such possession and guilty conduct may sustain the inference not only that he stole the goods, but that he made use of the means by which access to them was obtained.
See also 1 Wharton’s Criminal Evidence (12th Ed.) § 135, pp. 254-259 and 3 Underhill’s Criminal Evidence (5th Ed.) § 701, p. 1651.
The foregoing authorities approve the practice and relate to both robbery and burglary cases. We have been unable to find any case in Kansas where the unexplained possession of recently stolen property instruction has been either approved or disapproved in a robbery case. No case has been cited by either party to support such an instruction in a case of aggravated robbery. However, there is no dearth of authority in other states to support such an instruction in robbery cases. See Cruz v. People, 147 Colo. 528, 364 P. 2d 561; The People v. Powloski, 311 Ill. 284, 142 N. E. 551; and Coleman v. The State, 211 Ga. 704, 88 S. E. 2d 381.
Where the facts of an aggravated robbery have been otherwise placed in evidence the giving of an instruction on the inference to be drawn from the defendant’s unexplained possession of recently stolen property taken in such robbery is not erroneous. Such an instruction if given must include, however, some statement to indicate the aggravated robbery must be established to the satisfaction of the jury by other evidence and the possession of the property must be so soon after the time of the commission of the robbery as to render it morally certain that the stolen property could not have changed hands after the commission of the robbery.
The questioned instruction did advise that defendant’s possession of the property must have been so soon after the time of the commission of the robbery as to render it morally certain that the property could not have changed hands after the commission of the robbery. As written the instruction presupposes the commission of the robbery and, when read in conjunction with the instruction requiring proof of the robbery beyond a reasonable doubt, it is reasonably clear what was meant by “other criminating circumstances” and “other facts indicative of guilt.”
Where as here there was direct evidence of appellant’s participation in the crime, his flight and immediate apprehension it may be doubtful whether the questioned instruction was helpful to the jury. However, the inference arising from the possession was limited by the trial court as to purpose and effect, and the giving of the instruction in the form used although not approved by this court does not constitute prejudicial error.
Appellant also contends the effect of the instruction was to shift the burden of proof to him. Such a contention was recently examined and rejected in State v. Kowalec, supra, and in State v. Hardyway, 205 Kan. 55, 468 P. 2d 116. We adhere to what was said in those cases.
The judgment of conviction and sentence is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a criminal action in which Robert B. Campbell (defendant-appellant) was charged with the offenses of assault with felonious intent (K. S. A. 21-431), first degree kidnapping (K. S. A. 21-449), first degree murder (K. S. A. 21-401) and first degree robbery (K. S. A. 21-527).
A jury found the defendant guilty of the four crimes with which he was charged. The defendant was sentenced to two terms of life imprisonment, one for the crime of murder and the other for the crime of kidnapping. The defendant was also sentenced to confinement for a period of not less than ten years nor more than twenty-one years for the crime of robbery, and for a period not exceeding ten years for the crime of felonious assault. The trial court ordered the four sentences to be served consecutively.
The defendant has duly perfected an appeal from the judgment and sentences of the district court of Sedgwick County, Kansas.
A recitation of the facts as disclosed by the evidence presented at trial is essential for an understanding of the issues.
The appellant and his cousin, John Hendren, arrived at the home of Chester Mefford in Wichita, Kansas, at approximately 5:00 o’clock p. m. on February 12, 1969. During the course of the visit Mefford’s attention was drawn to a window by a passing automobile. After looking out the window, Mefford stated the passing auto belonged to a Kenneth Ketter, who, according to Mefford, had been causing him some trouble. Mefford asked Hendren if they could follow Ketter in Hendren’s car and Hendren replied in the affirmative.
The trio followed Ketter’s auto for some time, then lost sight of it, and eventually spotted it parked at an APCO service station located at the intersection of Kellogg and Pattie Streets in Wichita.
At this time, Hendren stopped his auto across the street and they began watching the station. When Hendren told Mefford and the appellant he had to proceed home, Mefford borrowed a dime, left the car, and placed a phone call from a nearby pay phone. Upon his return to the car, Mefford stated that two guys were coming by to pick him up soon. Sometime after 6:00 o’clock p. m. a 1966 Pontiac GTO arrived with three persons in it. They were Ralph Cluck (the owner and driver), John Phillips and Preston Haze. They had come in response to Mefford’s call.
The appellant and Mefford joined Cluck, Phillips and Haze in the GTO and the five undertook various sidetrips not material to this appeal. Eventually the group stopped at a tavern on South Hydraulic Street in Wichita which they left at approximately 8:45 o’clock p. m. Appellant and the others returned to the APCO service station to find Ketter’s auto was gone. After stopping, the appellant and Phillips entered the station and made inquiries about Ketter. When the pair returned to Cluck’s auto, the appellant boasted that he had found out everything about Ketter except his social security number. The appellant had been told Ketter lived only one-half block from the service station, at 414% Pattie Street.
The five left the service station and drove down the alley behind Ketter’s home two or three times. They next proceeded to take Preston Haze home.
After dropping Haze off at his home, Mefford stated he was going to return to Ketter’s house that night. The appellant then said he had a pistol at his house, whereupon the four proceeded to the appellant’s house.
The appellant’s pistol was not there; however, he did pick up a .410 gauge shotgun.
Cluck next drove to the home of the appellant’s mother where the appellant obtained his pistol from his wife’s car. The pistol was a .22 caliber Ruger automatic.
As the four were returning to Ketter’s house they observed Ketter leaving in his auto. They followed him to a nearby grocery store where they watched him for a short time. The appellant suggested they leave, return to Ketter’s house, and wait for him to return. They decided to do so and Cluck parked on Lewis Street at the end of the alley which ran behind Ketter’s house.
Cluck remained in his car while the appellant, Mefford and Phillips got out and walked down the alley to Ketter’s house. The appellant carried his pistol part of the way and then gave it to Phillips. After they had waited in the doorway at the rear of Ketter’s house a short time, Ketter drove down the alley and parked his car in the driveway.
As Ketter was getting out of his car, the appellant walked over to him and engaged him in conversation. Then, without warning, the appellant knocked Ketter to the ground, whereupon Mefford held Ketter’s feet and the appellant held Ketter’s shoulders while Phillips beat Ketter senseless by striking him on the head with the pistol.
Approximately five minutes after leaving Cluck’s car, the trio returned carrying Ketter face down; Mefford had Ketter’s shoulders and the appellant had his feet. They placed Ketter on the floor of the back seat and drove to Kellogg Street where they began driving in a westerly direction. After several miles had been traveled Cluck turned south on Kansas Highway No. 42. While traveling in a southeastern direction on K-42, Phillips inspected Ketter’s billfold and, finding it contained three dollars, he gave two dollars to Cluck and kept one for himself. As they passed over the "twin bridges” on K-42, Phillips threw the billfold out of the car.
Cluck drove on to a point approximately one-half mile south of the bridges where he turned onto a dirt road. Chuck drove another one-half mile on the dirt road and then stopped.
All four got out of the car and carried Ketter for approximately half a mile across the fields, pulling him under several fences in the process. The appellant was carrying the shotgun and the pistol. Coming to a small creek about twenty to forty feet wide, they laid Ketter face down on the ground by the water.
At that point Mefford said, “Let’s turn him over on his back, I’m going to do him in right now.” The appellant pulled out his pistol as Mefford rolled Ketter over, arid put it up to Ketter’s head. Mefford straddled Ketter’s body, clicked open his knife, and raised his arm to stab Ketter in the chest. As he did so, Ketter raised himself a few inches off the ground and tried to grasp Mefford’s wrist. The appellant then shot Ketter in the head. After the shot Mefford stabbed Ketter several times. Mefford observed, “This guy sure is tough, he bent my knife.” The appellant, Mefford and Phillips undressed Ketter’s body. Mefford stabbed Ketter’s body one last time and then he and the appellant hoisted Ketter’s body and threw it into the water four or five feet from the bank.
The appellant put the pistol in his pocket, picked up the shotgun, and all four returned to the car. Mefford and Phillips carried Ketter’s clothes. After reaching the car, Cluck put Ketters clothes and the back seat floor mat into a box in his car trunk. They returned to K-42 and began driving back to Wichita. Recrossing the “twin bridges,” Cluck saw Ketter’s billfold lying in the road; he stopped the car and retrieved it.
Cluck drove through Wichita into the county north of the city. Various items were thrown from two bridges in that area, including Ketter’s clothes and shoes, Mefford’s knife, Campbell’s pistol and some of his own clothes, and the floor mat from Cluck’s car. Cluck then returned to Wichita and took the appellant, Mefford and Phillips home. Before going to bed, Cluck burned Ketter’s billfold.
The appellant, Cluck and Mefford were soon apprehended in Wichita. Phillips was arrested at the home of relatives near Red-rock, Oklahoma, where he had been hiding.
I.
The appellant first contends the trial court erred in denying him a representative jury in violation of his constitutional rights because the trial court excluded ten jurors who stated they had an aversion to capital punishment.
The Supreme Court of the United States has held that a death sentence cannot be constitutionally imposed by a jury from which jurors have been removed because they are opposed to capital punishment or have conscientious scruples against imposing the death penalty. (Witherspoon v. Illinois, 391 U. S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770; Bumper v. North Carolina, 391 U. S. 543, 20 L. Ed. 2d 797, 88 S. Ct. 1788; Maxwell v. Bishop, 398 U. S. 262, 26 L. Ed. 2d 221, 90 S. Ct. 1578; and Boulden v. Holman, 394 U. S. 478, 22 L. Ed. 2d 433, 89 S. Ct. 1138.) This court has adhered to the rule in Zimmer v. State, 206 Kan. 304, 477 P. 2d 971; State v. Roth, 207 Kan. 691, 486 P. 2d 1385; and State v. Theus, 207 Kan. 571, 485 P. 2d 1327.
The appellant was not given the death penalty in this case, but he contends due to the fact that ten jurors were excused as having an aversion to capital punishment, the jury selected was an unrepresentative jury on the issue of guilt and as such increased the risk of conviction. The appellant concedes that no testimony was introduced at the trial to support his contention, but requests the court to consider the theory presented in various law review articles. (“New Data on the Effect of a ‘Death Qualified’ Jury on the Guilt Determination Process” by George L. Jurow [84 Harv. L. Rev. 567]; “On the Conviction Proneness and Representativeness of the Death-Qualified Jury: An Empirical Study of Colorado Veniremen” by Edward J. Bronson [42 Colo. L. Rev. 1]; “Toward Expansion of Witherspoon: Capital Scruples, Jury Bias, and Use of Psychological Data to Raise Presumptions in the Law” by Faye Goldberg [5 Harv. Civil Rights Civil Liberties L. Rev. 53]; and “Does Disqualification of Jurors for Scruples Against Capital Punishment Constitute Denial of Fair Trial on Issue of Guilt?” by Walter E. Oberer [39 Tex. L. Rev. 545].)
The Witherspoon decision is not applicable because the death penalty was not imposed upon the appellant in this case. (Bumper v. North Carolina, supra.) As to the issue of guilt, there is no presumption that a “death qualified” jury is unrepresentative; the burden is clearly upon the appellant to prove such an allegation. (Bumper v. North Carolina, supra; Turner v. State, 208 Kan. 865, 494 P. 2d 1130; and Zimmer v. State, supra.) The appellant having failed to prove that the jury was unrepresentative on the issue of guilt, the constitutional rights of the appellant have not been infringed and his attack upon the jury must be rejected.
It may be conceded that qualification of the jurors by removing those who expressed conscientious or religious scruples against the death penalty was erroneous. However, the record does not disclose the appellant was prejudiced by reason thereof.
II.
The appellant contends he was denied a fair trial because a sample of his blood was taken and typed and physical measurements were made of him in violation of his constitutional rights by their subsequent admission in evidence.
It appears from the appellant’s brief he has abandoned any objection to the taking of his physical measurements, and there is nothing in the record to disclose that such measurements were introduced in evidence.
Four days after the murder of Kenneth Ketter a blood sample was taken from the appellant at the Sedgwick County jail by Richard Danielson, a qualified medical technologist of the Wichita Clinical Laboratories. Linda Morgan, a chemist with the Wichita police department, accompanied Danielson to the jail and assisted him in taking the sample. She informed the appellant that she was to take a sample of blood and the appellant made no objection. His attorney was not present. Miss Morgan later tested and typed the blood sample. At the trial Miss Morgan testified that the appellant had international blood type O. This evidence was admitted by the trial court over an ambiguous objection advanced by the appellant. The appellant contends the admission of such evidence was erroneous in that it violated several of his constitutional rights.
After carefully reviewing the record presented on appeal, we fail to see the relevance of this evidence on the issue of the appellant’s innocence or guilt. The victim’s blood type was determined to be AB. The record discloses blood of the type AB was found on Mefford’s shoes, on Phillips’ jacket, and on the red floor mat and on the hinge of the Pontiac GTO owned by Cluck. There is evidence in the record of blood spots on a white handkerchief which were type O, but there is no evidence linking the white handkerchief to the appellant. When the appellant took the stand and testified in his own behalf, he testified he wiped Ketter s bloody head with his own bandana handkerchief. He further testified that he threw his own jacket, jeans, shirt and shoes in the river. Nothing in the record indicates that these items of clothing or shoes were recovered or that any blood was found on the appellant’s clothing.
Under these circumstances the admission into evidence of the results of the blood grouping test made upon a sample of the appellant’s blood, even if erroneous, was harmless error. It did not deny the appellant a fair trial.
An extended discussion of the various constitutional points asserted by the appellant, some of which were argued at the trial, would be purely academic. (See Schmerber v. California, 384 U. S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826.)
Both Mefford and Cluck testified on behalf of the state in the case and implicated the appellant from the witness stand as a full and active participant in the crimes with which he was charged. The appellant took the witness stand in his own defense and to a large extent corroborated the testimony of Mefford and Cluck, except for the actual shooting of the victim.
Tainted evidence consisting of the results of a blood grouping test, purported to be in violation of Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 8d 1081, 81 S. Ct. 1684, was said to be harmless beyond a reasonable doubt in Harrington v. California, 395 U. S. 250, 23 L. Ed. 2d 284, 89 S. Ct. 1726, where the direct evidence against the defendant in the form of in-court testimony of his confederates was overwhelming.
III.
The appellant contends the trial court erred in refusing him funds with which to employ extra witnesses and investigators to corroborate his theory of the case; that this constituted economic discrimination and thereby prejudiced him from receiving a fair trial.
The appellant relies upon Griffin v. Illinois, 351 U. S. 12, 100 L. Ed. 891, 76 S. Ct. 585, for the proposition that in criminal trials a state can no more discriminate on account of poverty than on account of religion, race or color; and that the ability to pay costs in advance bears no rational relationship to a defendant’s guilt or innocence and cannot be used as an excuse to deprive a defendant of a fair trial.
The Griffin case was decided on the ground that indigent defendants on appeal to the highest court of the state were entitled to a trial transcript, which is not the proposition here presented. Here the appellant contends that:
. • . due to the failure of the trial court to permit funds to be allowed for an in-depth statement of Dr. Kurth’s findings as to the mental status of the defendant, or in the alternative, to have Dr. Ralph L. Drake examine the appellant to determine his mental state, then the appellant asserts his defense of insanity was abrogated without any means of determining on what basis Dr. Kurth found the appellant to be competent, and such abrogation was due to the lack of financial resources and in fact constituted economic discrimination in prohibiting the appellant from receiving a fair trial.”
A recital of the facts is necessary to adequately answer the appellant’s contention. On March 17, 1969, the appellant requested the trial cotut to appoint a commission pursuant to K. S. A. 1968 Supp. 62-1531 (Repealed L. 1970, ch. 129, §22-4604) to inquire into his competency to stand trial and assist in the preparation of his defense. The appellant also requested the court to provide funds “equal to that used by the state in preparation of its case in order to adequately prepare his own case.” The trial court denied the appellant’s request for funds, but did appoint Dr. C. J. Kurth on March 26, 1969, as a commission to examine the defendant “to determine whether or not he is insane, an idiot, or an imbecile and whether or not he is able to comprehend his position and assist counsel in his defense, and to report back in writing his findings to this court.”
Dr. Kurth filed his report indicating that the appellant was competent to stand trial and assist in his defense.
On May 7, 1969, the appellant moved the trial court to provide him with a copy of Dr. Kurth’s report and to provide funds for an examination of the appellant by Dr. Ralph L. Drake and by the Wichita Psychiatric Center regarding his mental state, before, during and after the crimes with which he was charged, including an electroencephalogram examination. The request for funds was denied, but the record tends to show the appellant received a copy of Dr. Kurth’s report.
Defense counsel was advised by Dr. Kurth on May 28, 1969, that he would be available to discuss certain aspects of the appellant’s character, but that this would have to be done by deposition. The appellant did not depose Dr. Kurth, claiming at the trial this was the result of insufficient funds. At the trial, defense counsel renewed his motions for funds.
This court has held that the granting or denial of a motion to provide supporting services to counsel for an indigent defendant in a criminal prosecution is a matter within the discretion of the trial court. Its ruling will not be disturbed in the absence of a showing that the exercise of such discretion has been abused to the extent of prejudicing the substantial rights of the defendant. (State v. Taylor, 202 Kan. 202, 447 P. 2d 806; State v. Young, 203 Kan. 296, 454 P. 2d 724; and State v. Frideaux, 207 Kan. 790, 487 P. 2d 541.)
K. S. A. 1971 Supp. 22-4508 now provides for investigative services for indigent defendants, but the trial court must determine such services are “necessary,” which is in accordance with prior case law.
In July, 1969, when this case came on for trial the appellant renewed his request for funds and K. S. A. 1971 Supp. 22-4508 authorizing such expenditures, had become operative. (L. 1969, ch. 291, § 8, effective July 1, 1969.)
Both before and after the effective date of 22-4508, supra, the burden was upon the appellant to show that the request for services was necessary, and on appeal that the denial of such request by the trial court prejudiced his substantial rights.
The appellant has made no attempt in his brief to sustain this burden. At best, the appellant suggests that absent Dr. Drake’s services, or Dr. Kurth’s deposition, he had no way of knowing whether the defense of insanity was available.
The mere hope or desire to discover some shred of evidence when not coupled with a showing that the same is reasonably available and necessary for a proper defense does not support a claim of prejudicial error. (State v. Taylor, supra.)
When a similar issue was raised before the Tenth Circuit Court of Appeals in Watson v. Patterson, 358 F. 2d 297 (10th Cir. 1966), the Court of Appeals noted that it was unable to find any cases holding that the appointment of experts was a constitutional requirement; rather, the court held that requests for supporting services were to be measured by the requirements of due process, and the test of due process was “fundamental fairness.”
Here the trial court appointed a sanity commission pursuant to the appellant’s request, and the report of the commission disclosed the appellant was competent to stand trial. Being dissatisfied with the report the appellant sought funds for additional psychiatric testimony, but was unable to convince the trial court of its necessity. We cannot say the trial court erred in determining the matter of necessity and in exercising its power of discretion. Under the circumstances related it does not appear that the substantial rights of the appellant were prejudiced.
IV.
The appellant contends the trial court erred in the admission of photographs of the deceased other than state’s Exhibit No. 106, which was used for the purpose of identification. He contends these photographs were used solely for the purpose of inflaming the jury; they prejudiced him, and thereby denied him a fair trial.
The twenty photographs and seven colored transparencies admitted in evidence are referred to by the appellant as exhibits which were repetitious, excessive and beyond all probative value, and were used solely for the purpose of inflaming the jury.
Exhibits, be they pictures or otherwise, which are relevant and material to the matters in issue, are not rendered inadmissible merely because they may be shocking or gruesome. Where the defendant is charged with a crime of violence, colored slides are relevant and admissible if they tend to establish the violence which was alleged. (State v. Hill, 193 Kan. 512, 514, 394 P. 2d 106.)
Even though gruesome, photographs properly identified, as representing physical objects which constitute a portion of a transaction which serve to unfold or explain it, may be exhibited in evidence whenever the transaction is under judicial investigation. (State v. Booker, 200 Kan. 166, 168, 434 P. 2d 801.) Photographs admitted for the purpose of identifying the victim and to portray the facts described by a pathologist witness concerning the autopsy per formed on the body of the victim are relevant and admissible. (State v. Turner, 193 Kan. 189, 199, 392 P. 2d 863.)
Even where the defendant concedes the victim’s death and the cause of death, it is incumbent upon the prosecution to prove as a part of its case in chief all elements of the crime charged; and photographs to prove the elements of the crime, including the fact and manner of death, and the violent nature of the death, and to corroborate the testimony of other witnesses, are relevant and admissible. (State v. Johnson, 201 Kan. 126, 129, 439 P. 2d 86; and State v. Martin, 206 Kan. 388, 390, 480 P. 2d 50.)
All of the state’s photographic exhibits disputed by the appellant were relevant to the issues on trial in this case and were admissible. The colored slides were used extensively by Dr. William Eckert, a pathologist, in describing the wounds to the victim’s body, the manner and cause of death, and the probable circumstances surrounding the death. Other photographs were offered to show the examination of the victim’s body in sequence. Some of the exhibits corroborated the testimony of the state’s witnesses.
In an abundance of caution the trial court instructed the jury that it should not permit the photographic exhibits to cause any bias, passion or prejudice in their minds.
We cannot say, after reviewing the entire record, the admission of the photographic exhibits and transparent slides into evidence denied the appellant a fair trial.
V.
The appellant contends the trial court erred:
“. . . in admitting much of the State’s evidence for the purpose of showing conspiracy between the defendant and others, notwithstanding the fact the defendant was not charged with a conspiracy and the admission of such evidence denied the defendant the safeguards which exist under the substantive law of conspiracy, as well as making statutory provisions for separate trials of joint defendants in a felony case completely and wholly meaningless.”
The appellant contends the trial court should have determined prima facie whether or not a conspiracy existed and, if so, when the conspiracy terminated in order to rule whether statements made by Mefford and Cluck and the acts of Phillips in Oklahoma were admissible against the appellant.
The appellee argues that at no time during the course of the trial did the appellant voice the objections to the testimony now asserted on appeal, i. e., that it allowed admission of statements of a co-conspirator made after the termination of the conspiracy. This point is well taken.
Nevertheless, we perceive a more substantive reason for affirming the trial court’s decision to admit the testimony of Ron Thomas, Wylarma Phillips and Floyd Hannon.
This court in State v. Borserine, 184 Kan. 405, 337 P. 2d 697, said:
“. . . Evidence of the acts and declarations of the co-conspirators, done and made in the absence of the accused, is admissible so far as it pertains to the furtherance of the common criminal design, to its consummation, to the disposition of its fruits, and to acts done to preserve its concealment, as an exception to the rule against the admissibility of hearsay evidence. (State v. Emory, 116 Kan. 381, 226 Pac. 754, and cases cited therein.) The order of proof in such case is largely controlled by the trial judge; and where the crime has to be established by circumstantial evidence the prosecutor must be given permission to present that proof bit by bit as best he can without too rigid enforcement of the rule. If upon completion of the State’s case, all the facts tend to show a conspiracy, the order of proof in which the acts of the conspirators are shown is not of much importance. (State v. Shaw, 108 Kan. 781, 196 Pac. 1100, and cases cited therein.)” (p. 411.) (Emphasis added.)
K. S. A. 60-460 (i) codifies in substance the exception to the hearsay rule as stated in Borserine. In Borserine this court accepted the view that a conspiracy is not terminated when an attempt to conceal the offense is made. The acts and declarations of one conspirator in the prosecution of the crime or its concealment in the foregoing respects are considered the acts and declarations of all, and are evidence against all. (Syl. ¶ 5.)
Borserine also stands for the proposition that evidence of a conspiracy involving several persons to commit the crime for which one is separately charged in an indictment or information is admissible to show a conspiracy between the one separately charged and the others, although the others are not joined in the indictment or information and no conspiracy is charged therein. (Syl. ¶ 2.) (See, also, State v. Shaw, 195 Kan. 677, 408 P. 2d 650.)
It is obvious from the record that Mefford’s statement to witness Ron Thomas was an attempt to conceal the crime. As such, the conspiracy had not terminated and the statement was admissible as against the appellant.
Although the record is neither clear nor complete where it covers the testimony of Wylarma Phillips, wife of John Phillips, there exists small doubt that her testimony was admissible under the theory that her testimony related to acts done to preserve the concealment of the offense.
Colonel Floyd Hannon of the Wichita police department testified that on February 14, 1969, the attorney for the co-conspirator, Ralph Cluck, informed Hannon that Cluck was willing to show Hannon where the body of Kenneth Ketter could be found. Colonel Hannon also testified regarding directions given to him by co-conspirator Cluck while they were searching for the body of the victim. The defendant assigns the admission of this testimony as error.
In light of the fact that Cluck testified in detail concerning the circumstances of the murder, including the statements he made to various law enforcement officers, this was harmless error.
The fact that the appellant was not charged with conspiracy is immaterial. (State v. Borserine, supra, Syl. ¶ 2.)
VI.
The appellant contends the trial court erred in failing to sustain his motion for a mistrial at the end of the state’s opening statement, and at the conclusion of the state’s case in chief.
It is the appellant’s position that the prosecuting attorney is in a quasi-judicial position and as an officer of the court must restrict his opening statement to the evidence he intends to present. While conceding that the prosecuting attorney must be given latitude in the opening statement, the appellant contends the opening statement here made was so prejudicial in its content that no instruction or reprimand from the court would correct the error committed. The appellant isolates various statements made by the prosecuting attorney in his opening statement concerning which there was no evidence introduced at the trial.
The county attorney in his opening statement addressed the jury for an hour and a half, and a reading of the entire opening statement in context indicates that the portions isolated by the appellant are relatively insignificant and could not have had a prejudicial effect upon the jury, nor did it deny the appellant a fair trial. Most of the statements made by the prosecuting attorney which were not borne out by the evidence concerned the details of various events. These details were trivial in nature and inconsequential.
Opening statements in a criminal prosecution are merely to advise the jury as to what it may expect by way of evidence and the questions which will be presented to the jury, and they are not evidence but are merely for the assistance of the jury. (Webb v. United States, 191 F. 2d 512, 515 [10th Cir. 1951].)
Proof which the prosecuting attorney anticipates in the trial of a case frequently faffs to come up to expectations, and so the tendency is to permit a prosecuting attorney a reasonable latitude in stating to the jury the facts he proposes to prove. Where no substantial prejudice results, and there is nothing to show that the prosecuting attorney acted in bad faith, appellate courts usually refuse to reverse or remand a case for a new trial because of a reference by the prosecuting attorney to matters which he subsequently made no attempt to prove, or for one reason or another was unable to prove. (Woods v. State, 440 P. 2d 994, 996 [Okl. Crim. 1968], cert. denied 393 U. S. 953; and State, v. Sykes, 372 S. W. 2d 24, 27 [Mo. 1963].)
Under the foregoing rule, disposition of an appellate claim on this point turns on the degree of prejudice resulting from the unsupported remarks of the prosecuting attorney.
The Kansas Supreme Court in State v. Welsh, 138 Kan. 379, 26 P. 2d 592, found that the county attorney was not guilty of misconduct in making certain remarks in his opening statement to the jury. There the trial court instructed the jury to confine its deliberations to the evidence, and absent bad faith, the harmful effect of an opening statement was considered cured.
In Welsh the prosecuting attorney in his opening statement referred to promises of material reward by the defendant to induce certain witnesses not to testify against him and had threatened, if he was arrested, to defeat the sheriff for reelection. In presenting the state’s case the prosecuting attorney did not present evidence to prove these assertions made in his opening statement.
Even assuming some prejudice, which we do not concede, application of the Welsh rule to the facts in this case demonstrates that the prejudice was cured.
Two of the appellant’s co-conspirators, Cluck and Mefford, on the record here presented implicated the appellant as a full and active participant in the crimes for which he was convicted. The court’s instructions as a whole, and the county attorney’s remarks at the conclusion of his opening statement, fully informed the jury that it was to confine its deliberations to the evidence.
VII.
The appellant contends the trial court erred:
“. . . in denying appellant’s motion for discharge at the close of the State’s case in chief in respect to counts # 1 and # 4 of the Information, for the reason count # 1 was the integral element of and merged in the crimes of kidnapping and murder and that the State’s evidence failed to show that this defendant was in any way guilty of the charge contained in count # 4.”
The appellant was charged in count # 1 with a felonious assault under K. S. A. 21-431. Count # 2 charged him with first degree kidnaping under K. S. A. 21-449. Count # 3 charged the appellant with felony murder under K. S. A. 21-401, and count # 4 charged him with first degree robbery under K. S. A. 21-527. The appellant argues he should have been discharged as to count # 1, felonious assault, because it was an integral element of the remaining three counts. His argument is based upon State v. Gauger, 200 Kan. 515, 438 P. 2d 455.
In Gauger the defendant without any provocation jumped up, hit the victim on the back of the head, knocked him to the ground, and, at knife point, rifled his pockets, took between $10 and $15 from him, and left the premises. The defendant there was charged with first degree robbery and assault with intent to rob. He was convicted of both crimes, but the Supreme Court on appeal reversed the conviction for assault. The language used by the court in announcing its decision reads:
“In the instant case there was but a single act of violence or intimidation, and that act, which was an essential element of the robbery conviction, was also relied on as constituting the separate crime of assault with intent to rob. Under such circumstances, we hold that two separate convictions cannot be carved out of the one act of criminal delinquency. . . .” (p.525.)
The state argues that Gauger has no application to the facts here presented because there were a great many acts of violence. Here it is argued the beating of the victim with a pistol was separated by a great deal of time, space and violence from the actual taking of the victim’s property. The state contends that immediately preceding the taking of the victim’s property he was shot in the head and stabbed several times. This, it is argued, was more than adequate to establish the necessary element of violence for the robbery conviction.
With regard to the first count, felonious assault, the victim was beaten with a pistol, when he was first accosted in the alley behind his home, to the point of unconsciousness. He was then moved into the Pontiac GTO which was used to transport him to the scene of the murder. Enroute his billfold was taken and the money divided. On these facts, it is our opinion that the rule in Gauger applies and count # 1 was duplicitous of count # 4 which charged the appellant with first degree robbery. We therefore hold the trial court should have dismissed count # 1 of the information at the close of the state’s evidence.
As to count # 4 of the information, the appellant argues he did not participate in the taking of the victim’s clothing, personal effects and money. He therefore asserts that the state did not prove a prima facie case as to count # 4. He argues the personal effects and Ketter’s car keys were thrown in the water at the creek by Mefford; that Mefford ordered Phillips to take the clothes, which Phillips did; and that Cluck kept the loose change. As to Ketter’s billfold, the appellant argues Phillips and Cluck divided the money and the appellant never had the billfold or any of the money.
On the facts in this case the appellant’s conviction on count # 4 is supported by the evidence. Any person who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal. (K. S. A. 62-1016; State v. Borserine, supra; and State v. Sharp, 202 Kan. 644, 451 P. 2d 137.)
VIII.
The appellant contends he was prejudiced and denied a fair trial because of the misconduct of the state in interviewing Dr. Kurth and Ralph Cluck in violation of the court’s orders.
The appellant first asserts that the county attorney violated the physician-patient privilege. Dr. Kurth was the psychiatrist appointed by the court as a commission to examine the appellant as to his mental condition.
First, the appellant was not a “patient” within the meaning of K. S. A. 1971 Supp. 60-427 (a) (1). Second, the privilege does not exist in felony cases. (K. S. A. 1971 Supp. 60-427 [&].) Third, if the appellant be regarded as a patient, there is no privilege under K. S. A. 1971 Supp. 60-427 (d) (physician-patient privilege) in an action in which the condition of the patient is an element or factor of the claim or defense of the patient.
Dr. Kurth not only interviewed the appellant as the commissioner appointed by the court, but he also came to the jail and questioned the appellant concerning ownership of the gun that shot the victim. In this the appellant contends Dr. Kurth was an agent of the state to gather information for the prosecution. Dr. Kurth did not testify at the trial concerning the statement made by the appellant, but it is argued the state used this evidence in preparing its case against him.
No evidence in the record is fingered by the appellant to support his position. Dr. Kurth did not testify at the trial of this case, and the appellant had no occasion to assert any privilege concerning which he complains. Error cannot be predicated upon such a nebulous and abstract assertion.
The appellant’s contention concerning the county attorney’s interview with Ralph Cluck in violation of the court’s order also is frivolous.
During the cross-examination of the state’s witness, Ralph Cluck, a recess was requested by Cluck’s attorney, James Harrison, to discuss Cluck’s testimony with him. Upon declaring a recess the trial court permitted Mr. Harrison to have a conference with his client. Shortly after this recess the trial court called the jury back and recessed for the day in order to hear several motions from the state. Thereafter, the county attorney and various law enforcement officers consulted with Cluck. The appellant argues the trial court ordered that no one talk to Cluck except his attorney. This was not the order of the trial court. It was only during the recess requested by Cluck’s attorney that any inference could be drawn that no one was to talk to Cluck, except his attorney.
IX.
The appellant has abandoned point nine in his brief wherein he challenged the trial court’s admission of various state’s exhibits into evidence.
X.
The appellant contends the trial court erred in allowing endorsement by the state of Preston Haze and Chester Eugene Mefford on the information during the trial of the case, and in permitting Mefford to enter the courtroom during the time the appellant was testifying, and in permitting Mefford’s recall as a rebuttal witness.
The appellant relies upon Johnson v. Leggett, 28 Kan. 590, for the proposition that the state could not impeach its own witness.
Two days after the offenses here under consideration were admitted, Mefford taped a statement for police officers. The state sought admission of the taped statement by calling Mefford to the stand. For the most part Mefford refused to answer the county attorney’s questions. The state then moved the trial court to admit the taped statement under K. S. A. 60-422 in order to show prior inconsistent statements, in an effort to impeach the witness. The trial court denied the motion. On appeal the appellant assigns this attempt to get the taped statement into evidence as error. We fail to see merit in this contention because the evidence offered to impeach Mefford was not admitted. The court sustained the appellant’s objection at the trial level.
It should be noted at this point Mefford testified in full without reservation for the state in rebuttal, after he heard the testimony of the appellant on the witness stand.
Apparently Haze and Mefford were hostile to the state until they heard the testimony of the appellant. They then made it known to the county attorney they desired to testify on behalf of the state in rebuttal. Permitting the endorsement of their names on the information by the state during the trial under these circumstances was within the discretionary power of the trial court.
XI.
The appellant contends the trial court did not correctly state the law of Kansas in giving instructions Nos. 7, 8, 11, 13 and 20 upon the facts and the evidence in this case.
XII.
The appellant also contends the trial court erred in refusing to instruct the jury on lesser included offenses committed under duress.
Points eleven and twelve are argued by the appellant in his brief together. It is the appellant’s contention that the trial court should have instructed the jury on lesser included offenses because the appellant committed the offenses with which he is here charged under duress exerted upon him by his co-conspirators, citing State v. Reed, 53 Kan. 767, 37 Pac. 174; and State v. Davis, 169 Kan. 251, 218 P. 2d 215.
The appellant asserts the jury should have been instructed on the reasonableness of the danger from Mefford to Campbell, and that it was a question of fact for the jury. The appellant contends there was sufficient proof in the record of Mefford exercising control over the other individuals, including the appellant.
The trial court denied the appellant’s request for instructions on lesser included offenses committed under duress on the ground that there was no evidence whatever to support such instructions.
Our review of the record confirms the trial court’s finding in this respect, and the trial court did not err in refusing to instruct as requested.
XIII.
The appellant asserts as his last point that the combined error of the various points previously asserted constitutes reversible error, in the event the appellate court does not find a single point of error sufficient to constitute reversible error.
Reviewing the record as a whole, none of the points asserted by the appellant for reversal, either in isolation or in combination, indicates that he was denied a fair trial or that his rights were substantially prejudiced to warrant the granting of a new trial. However, in view of the trial court’s failure to dismiss count # 1 of the information at the close of the state’s evidence, the conviction is reversed and the sentence vacated as to count # 1. The judgment and sentence on counts # 2, 3 and 4 are affirmed. | [
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Per Curiam:
This is an appeal in an action brought by Vergie Acosta, former wife of Cirilo Acosta, to recover delinquent permanent alimony payments in the sum of $3,125, to set aside a deed given by Cirilo to his present wife, Myrtle U. Acosta, on the ground it was fraudulent as to Vergie, and to have the judgment decreed a lien on the real estate conveyed to Myrtle.
The marriage of Vergie and Cirilo was terminated by a divorce on August 9, 1968. The real estate involved in this case was set over to Cirilo free and clear of any claim or encumbrance by Vergie, and Cirilo was ordered to pay Vergie the sum of $40 permanent alimony weekly. The alimony was later reduced to $30 weekly.
It was stipulated that weekly permanent alimony payments in the sum of $765 were due and unpaid on the date of the deed to Myrtle, and that $3,125 was delinquent on the date of the judgment.
The trial court found that fraud had not been established and sustained Myrtle’s motion to dismiss the action as to her at the conclusion of plaintiff’s case. It also entered a judgment in favor of Vergie for $3,125 with 8% interest and costs. No part of the judgment was decreed a lien on the real estate conveyed to Myrtle.
Vergie contends that the trial court erred in finding that the deed from Cirilo to Myrtle was not fraudulent, and in sustaining Myrtle’s motion to dismiss the action as to her.
This court holds that the trial court was not in error in finding fraud had not been established. That was a question of fact and there was competent substantial evidence to support the trial court’s finding; it cannot be disturbed by this court. Osborn v. Lesser, 201 Kan. 45, 439 P. 2d 395; Griffin v. Price, 199 Kan. 649, 433 P. 2d 464; Atkinson v. Herington Cattle Co., Inc., 200 Kan. 298, 436 P. 2d 816.
The trial court was also correct in dismissing the action as against Myrtle.
The weekly permanent alimony payments, in the sum of $765, which were due and unpaid on the date of the conveyance from Cirilo to Myrtle, were final judgments and a lien on the land at the time it was conveyed to Myrtle. Myrtle took subject to a $765 judgment lien. Brieger v. Brieger, 197 Kan. 756, 421 P. 2d 1; Ediger v. Ediger, 206 Kan. 447, 479 P. 2d 823.
However, it was unnecessary to decree such a lien since it already existed and Vergie had a remedy by way of execution in the original divorce action. Brieger v. Brieger, supra; and Ediger v. Ediger, supra.
By the same token it was unnecessary to render a lump sum judgment in this action since Vergie already had a judgment for the same amount based on the same obligation. Fangrow v. Fangrow, 185 Kan. 227, 341 P. 2d 998. That issue is not before us, however, because Cirilo filed no cross appeal from the judgment against him.
The judgment is affirmed. | [
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Per Curiam:
This is an action for malicious prosecution and false imprisonment. The appellant-plaintiff Baltazar Silva was placed in jail in Guymon, Oklahoma, for three to four hours on June 3, 1968, pursuant to a criminal complaint signed by appellee-defendant Bob Lewis. The complaint charged appellant with unlawful concealment of mortgaged property. The charge was dismissed and appellant thereafter filed civil suit against the appellees. The jury found in favor of the appellees and against the appellant. Silva now appeals, citing trial errors for reversal.
Appellant’s first two points allege the trial court erred in refusing to give plaintiff’s requested instructions pertaining to malicious prosecution. The instructions given were those contained in Pattern Instructions for Kansas, specifically PIK 14.30, 14.31, 14.32, 14.33, 14.34 and 3.04. The PIK instructions given fully covered the subject of malicious prosecution in a clear and concise manner. Plaintiff’s requested instructions were argumentative in nature and slanted toward plaintiff’s theory of the case. They were properly refused by the court.
The appellant also alleges the court erred in refusing to submit his case to the jury on the theory of false imprisonment in addition to the theory of malicious prosecution. Under the peculiar facts and circumstances of this case we find no error in the ruling of the trial court.
Finally, appellant argues the trial court erred in refusing to give plaintiff’s special questions submitted pursuant to K. S. A. 60-249 (b). The submission of special questions rests within the sound discretion of the trial court and we find no abuse of discretion here. (Thompson v. Norman, 198 Kan. 436, 446, 424 P. 2d 593.)
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
Fontkon, J.:
Jimmy W. Sullivan and Joe C. Smith, who are the appellants in this case, were tried jointly, along with their co-defendant Chester Irving, on three criminal charges: (1) Felony possession of a shotgun with barrel less than eighteen inches in length, the defendants Smith and Irving having been convicted of felonies within 5 years prior thereto and the defendant Sullivan having been released from imprisonment for felony within the preceding five years, all in violation of the provisions of K. S. A. 1971 Supp. 21-4201 and 21-4202. (2) Felony possession of firearms (being a revolver and a pistol) with barrels less than twelve inches long, Smith and Irving having felony convictions within the preceding five years, with Sullivan having been released from felony imprisonment less than five years before. This charge is alleged to be in violation of K. S. A. 1971 Supp. 21-4204. (3) Conspiracy to commit the crime of robbery in violation of the provisions of K. S. A. 1971 Supp. 21-3302. All three defendants were convicted on the two weapons charges and were acquitted on the count of conspiracy. Sullivan and Smith alone have appealed. They will be referred to herein either by name or as appellants.
Very briefly the background facts are as follows: Acting on a tip that a gambling game at 3213 Locust Street would be held up, officers from the Wichita police department and the Sedgwick County sheriff’s office staked out the house. Around 11:30 p. m. a Cadillac car circled the block and parked about a block away; three men emerged therefrom and walked around the house looking in the windows, after which they returned to the car, entered it and started to pull away; at this juncture the officers revved up their vehicles and attempted to stop the Cadillac as it entered the nearby intersection; the Cadillac, deigning not to be stopped, continued on its path for some two blocks with the officers in hot pursuit, one of their cars running parallel to the Cadillac on the driver’s side. During the chase, two pistols, a sawed-off shotgun, a towel and a pillow case made into a mask were thrown from the passenger’s side of the Cadillac. When the car was stopped, lo and behold, the three defendants emerged, Sullivan from the driver’s seat, Smith from the right front seat and Irving from the rear seat. Two .12 gauge shotgun shells were found in Smith’s pockets and two masks were found in the back seat.
A number of errors are alleged. Those which merit attention will be considered in order.
First it is contended the trial court erred in denying a motion for separate trials and in ordering that all three defendants be tried jointly. The backgound of this complaint must be sketched. On May 12,1971, Sullivan and Smith, through their counsel, G. Edmond Hayes, a Wichita attorney, moved for separate trials at the time of their arraignment. The Honorable Tom C. Raum granted their motion. On the date this action was taken the applicable statute was K. S. A. 1970 Supp. 22-3204 which required the court to grant separate trials upon request, when two or more defendants were jointly charged with a felony. However, the 1971 session of the Kansas legislature amended 22-3204 by providing that the granting of separate trials should be optional with the trial court, and the amendment became effective July 1, 1971. Soon after the amended statute took effect, the case not having yet been tried, the state moved that the prior order granting separate trials be set aside and that the defendants be tried jointly. Over strong objections, the state’s motion was sustained by the Honorable Howard C. Kline, administrative judge, and the three defendants were ordered to be tried jointly. Nine days later the case went to trial, after new motions for separate trials were overruled by Judge Raum.
Under the confronting circumstances we believe error was committed in denying the appellants’ motions for separate trials. From the beginning, Smith and Sullivan had been represented by the same attorney, Mr. Hayes, who had reason to anticipate, at least as far back as May 12, that his clients would be tried separately, as the trial court had first ordained. Mr. Hayes had expressed the belief that he would be able to represent both clients at separate trials without jeopardizing or prejudicing the interests of either.
When, in July, the state filed its motion to consolidate the cases for trial, contrary to Judge Raum’s prior order, the appellants’ counsel, apparently for the first time, sensed danger to his clients’ interests. Upon oral argument of the state’s motion to consolidate, Mr. Hayes advised the court it would be impossible for him, in a joint trial, to defend one of his two clients without prejudicing the other; that the serious question in this case was that of knowledge on the part of the defendants of the presence of the guns in the car and their intent, or lack thereof, to possess or control the weapons; and that the defense in both cases was different.
We are informed in the appellants’ brief that the evidence of each appellant tended to exonerate himself and incriminate the other. This state of affairs might have well been anticipated by the trial court from the objections interposed by Mr. Hayes and the arguments presented to the court in support thereof. We learn from the brief there was a dispute as to how the weapons came to be in the car, who brought or placed them there, and under what circumstances; what knowledge each occupant of the car possessed and who exercised control over the guns. In this state of affairs a single attorney representing both Sullivan and Smith would find himself in an intolerable position; he could hardly be expected to place either client on the stand to testify on his own behalf, and then subject him to cross-examination on behalf of the other. Faced with this dilemma, counsel offered the testimony of neither appellant. Thus each appellant, for all practical purposes, was deprived of the opportunity of testifying in his own defense, a right which he possessed no matter how unlikely his story might be.
Conflict of interest is a sensitive area in the law. It is recognized as such by the legal profession and it has been codified in Canon 5, DR-105, Code of Professional Responsibility, 205 Kan. Ixxxv-lxxxvi. See, also, Ethical Considerations, 5-14, 15, 16, 17 and 18, ABA Final Draft, Code of Professional Responsibility, pp. 60-61.
This court has not been silent on the subject. In State v. Leigh, 178 Kan. 549, 289 P. 2d 774, we spoke in these words:
. . The inviolate rule has long been firmly established both in the Canons of Professional Ethics and by judicial opinions that attorneys cannot represent conflicting interests or undertake to discharge inconsistent duties. . . .” (p. 552.)
In a somewhat different context we dealt with the problem in State v. Young, 196 Kan. 63, 410 P. 2d 256, where the trial court had appointed a single attorney to represent two indigent defendants who had been charged jointly with robbery, and who were later tried together, before trial one of the defendants requested separate counsel on the ground that his interests conflicted with those of his codefendant. The request was denied. In reversing the conviction which resulted, this court concluded that a possible conflict of interest existed which the trial court should have anticipated. The gist of our decision was framed in these words:
“The right of a person charged with crime to counsel under Section 10 of the Kansas Bill of Rights and K. S. A. 62-1304 is infringed where counsel appointed over the objection of accused was acting as counsel for codefendant[s] where a conflict of interests between defendants appeared to be a possibility.” (Syl. fl.)
Although counsel for the appellants may not have been as specific in apprising the trial court as to how his clients’ interests would be jeopardized as he was when he prepared his brief, we believe the court was sufficiently informed to have detected a conflict serious enough to require separate trials. We cannot say that the court’s failure in this respect was not prejudicial to the appellants’ right to a fair trial. In arriving at this conclusion we have taken note of tire language found in Sanchez v. Nelson, 446 F. 2d 849:
“. . . [I]n deciding whether or not joint representation deprived one or both defendants of effective counsel, the appropriate inquiries are: Did the representation deprive either or both of the defendants of the undivided loyalty of counsel? Did counsel have to, or did he in fact, ‘slight the defense of one defendant for that of another’? (Citing cases.)” (p. 850.)
The state vigorously asserts that defense counsel should have discontinued his joint representation of Sullivan and Smith upon finding then defenses incompatible, and should have asked to be relieved of the defense of one or the other. We are not required at this time to make a judicial pronouncement on this position, but we leave it with counsel for earnest consideration. This is an area in which the trial court will also be interested in seeing that the appellants are fairly tided.
We pass to another matter. Several weeks prior to trial the ad ministrative judge sustained a defense motion to require the prosecution to produce for inspection the results or reports of scientific tests or experiments made in connection with the case. The ensuing order specified that compliance be had prior to trial in sufficient time for the defense to prepare for trial. This discovery procedure is authorized by K. S. A. 1971 Supp. 22-3212 (1) (b).
Apparently the prosecuting attorney did nothing to comply with the order prior to trial. Then, during presentation of its case in chief, the state proffered the testimony of a fingerprint expert comparing the prints of all three defendants with those of their prior prison records. The purpose for which this evidence was introduced was to establish the prior felony convictions which were essential ingredients of the weapons offenses with which the defendants were charged. The state was also permitted to introduce, again over defense objections, the testimony of a Wichita police officer, attached to the laboratory, to the effect he had test-fired the three weapons and found them operable.
The record does not disclose the basis for the trial court’s ruling in admitting such testimony but a quotation found in the state’s brief indicates that the judge did not consider the firing of the guns to determine if they were functional to be a scientific test in the sense of a ballistics test. Be that as it may, K. S. A. 1971 Supp. 22-3212 ( 7) gives the court several options when the prosecuting attorney has not complied with its discovery order. The court may order the offending party to permit the discovery or inspection of materials not previously disclosed, may grant a continuance, or refuse to admit the undisclosed material in evidence, or it may make such other order as it deems just under the circumstances.
In the recent case of State v. Jones, 209 Kan. 526, 498 P. 2d 65, we had occasion to consider this problem in some depth in the light both of our statute, which is patterned after Federal Rule 16 (g), and of the American Bar Association Project on Standards for Criminal Justice. We shall not repeat what was said in the Jones opinion, but we commend its study to the practicing members of the bar. We cannot refrain from re-emphasizing, however, that a discovery order entered by the court is not to be taken lightly by a member of the bar. Once an order has been made directing discovery, counsel has a continuing obligation to see that its terms are carried out in utmost good faith.
We are persuaded that in this case the trial court did not abuse its discretion in admitting the testimony of either the fingerprint expert or the officer who test-fired the weapons. Upon oral argument of this appeal, counsel for the prosecution stated without contradiction that Mr. Hayes was aware of the tests before the witnesses took the stand and that he was not taken by surprise. In this connection it is worthy of note that no request was made by the appellants at the beginning of or during the trial to permit them to inspect any of the material concerning which the witnesses testified. Neither was any continuance asked for or sought. Moreover, the fingerprint evidence was not the only means available to the state for establishing the appellants’ former convictions. Other means of identification were at hand for that purpose. And this court has held that in a prosecution for the felony possession of a firearm there need be no specific showing that the weapon is capable of being fired. (State v. Omo, 199 Kan. 167, 174, 428 P. 2d 768.) In that case we said a pistol is a deadly weapon per se. The same rationale should apply to a sawed-off shotgun, as well. Although we do not condone the prosecution’s failure to honor the discovery order, we cannot say the trial court transcended the limits of a sound discretion to the appellants’ prejudice.
Mr. Sullivan challenges Instruction No. 14 which was tailored to apply to him alone. It reads as follows:
“You are further instructed that there has been evidence introduced tending to show that the defendant, Jimmy W. Sullivan, has been previously convicted of offense [sic] similar to that charged in the Information.
“You are instructed that such evidence of prior similar offenses was not admitted for the purpose of showing the defendant’s guilt of the crime charged, but is competent for the purpose of showing some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
It will be recalled that in the two felony weapons charges filed against Sullivan the information alleged, as an element of those offenses, that within the past five years he had been released from imprisonment for felony. The prior felonies for which he had been imprisoned were stated to be burglary of post offices, bank burglary and conspiracy to commit bank burglary.
If the challenged instruction refers to evidence concerning the burglary convictions set forth in the information, as we presume from appellants’ brief that it did, then the instruction, we believe, was erroneous. It would seem clear that whatever evidence was needed to establish the felonies for which Sullivan had been imprisoned would be admissible for that specific purpose, since it would be required to prove an essential element of the firearms charges. (State v. Knowles, 209 Kan. 676, 498 P. 2d 40.) However, that same evidence would not be relevant, in our opinion, in connection with establishing the possession of the firearms, which also is an element of the offenses charged. Hence, the jury would not be entitled to consider that evidence as tending to prove "motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident” unless the former convictions were based on felonies similar in character and design to the offenses presently charged.
It is our view that the former convictions of burglary and conspiracy to commit burglary are not sufficiently similar to the possession of firearms as to be admissible under 60-445 for the purpose of showing motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Neither is conspiracy to commit burglary so similar to conspiracy to commit robbery as to make evidence thereof admissible under K. S. A. 60-455 for any of the purposes mentioned therein.
In conclusion, it may not be amiss to say we find no error in the court’s having included a flight instruction, in view of the facts and circumstances which were shown to exist in this case. Neither do we consider the instruction on circumstantial evidence to be so confusing or misleading as to have been prejudicial to the appellants when considered in connection with all other instructions given.
The judgment of the court below is reversed and this cause is remanded with directions to grant appellants a new trial in accordance with the views expressed herein. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a workmen’s compensation case by the State Department of Social Welfare, the self-insured respondent, from an award to the widow and sole dependent of the deceased workman.
The only points presented on appeal are whether the trial court erred in finding (a) that the deceased workman sustained personal injury by accident arising out of and in the course of his employment; and (b) that the injury the deceased workman sustained was instrumental in part and was a contributing cause of his death.
The claimant, Avis F. Drake, contends the deceased workman, Darrell A. Drake, suffered an injury to his back on October 10, 1967, by accident and in the course of his employment as an assistant engineer at the Lamed State Hospital, and that this injury was a contributing cause of his death on January 5, 1968. The respondent contends there has been no showing of a personal injury by accident arising out of and in the course of employment, and further that there is no substantial competent evidence to show that such injury, if there was one, caused or contributed to the workmans death.
Darrell A. Drake was employed as an assistant chief engineer for the Larned State Hospital. On October 10, 1967, Drake in the company of three other Lamed State Hospital employees went to a warehouse on the hospital grounds for the purpose of inspecting some compressors. In front of the warehouse in question is a landing or dock about two feet high or slightly more. Viewing the evidence in the record most favorably to the claimant, Drake slipped while entering upon the landing and injured his back.
The claimant contends the decedent’s back became very painful which made it extremely difficult for him to cough and to clear his lungs. The condition was so aggravated that he was forced to enter the hospital for severe respiratory distress and back pain and was making a recovery when a complication set in and he died from the combined results.
The examiner found, in addition to the stipulations, that the workman did, in fact, sustain some injury to his back while engaged in his work, but that the back injury apparently sustained had nothing to do with the workman’s death. The examiner denied compensation.
On appeal to the district court of Pawnee County, Kansas, the district court found that Drake sustained personal injury by accident arising out of and in the course of his employment, and that the injury sustained was instrumental in part and was a contributing cause of his death. Accordingly, the claimant was awarded compensation.
Under K. S. A. 1971 Supp. 44-556, the Supreme Court on appeal in a workmen’s compensation case is limited to determining questions of law. (Morgan v. Auto Transports, Inc., 192 Kan. 139, 141, 386 P. 2d 230.) On the issues here presented our only function in reviewing the case is to determine whether the trial court’s findings are supported by substantial competent evidence.
In reviewing the record to determine whether it contains substantial evidence to support the findings of the trial court, this court is required to review all of the evidence in the light most favorable to the prevailing party below. (Jones v. City of Dodge City, 194 Kan. 777, 778, 402 P. 2d 108.)
The term “substantial evidence,” when applied to workmen’s compensation cases, means evidence possessing something of substance and relevant consequence, and carrying with it fitness to induce conviction that the award is proper, or furnishing substantial basis of fact from which the issue tendered can be reasonably resolved. (Jones v. City of Dodge City, supra; Weimer v. Sander Tank Co., 184 Kan. 422, 337 P. 2d 672; and Barr v. Builders, Inc., 179 Kan. 617, 296 P. 2d 1106.)
Reviewing the evidence, properly admissible in a workmen’s compensation case, as we must, the record discloses substantial competent evidence to sustain the trial court’s finding that the deceased workman sustained personal injury by accident on October 10, 1967, arising out of and in the scope of his employment.
Mrs. Drake, the claimant and widow of the deceased, testified that her husband had spoken to her about the incident upon arriving home from work that evening; that he complained of backaches which he attributed to a slip on the dock at his place of employment. Mrs. Drake kept a diary in the form of a calendar and made detailed entries concerning her husband’s complaints and condition. According to Mrs. Drake her husband complained of back pain every day between October 11 and October 23, 1967. He had returned to work on October 11, 1967, but came home complaining of back pain. He never returned to work, remaining at home until he entered the Larned Hospital on October 23, 1967. He was transferred to the Wesley Medical Center in Wichita on December 5, 1968, and during this period he constantly complained of back pain.
The decedent consulted Dr. Brenner for his back condition, and Mrs. Drake testified Dr. Brenner told her the decedent’s problem was not pleurisy but back trouble. She told of rubbing liniment on his back because of the complaints he made, and how he slept in a chair because his back pained too much for him to lie down. While the three men accompanying Drake to the warehouse on October 10,1967, did not observe Drake slip, they were not particularly observing him on the occasion, and one admitted on cross-examination that the accident could well have happened as Mr. Drake said it did.
Both the hospital records, after the decedent’s admission to the hospital, and the doctor’s notes attribute the decedent’s injury to a fall at work and indicate the persistent complaints of back pain by the decedent. Medicine was prescribed for such pain and administered. AH of the foregoing evidence is consistent with the widow’s testimony.
Whether the injury sustained by the decedent on October 10, 1967, was instrumental in part and a contributing cause of the decedent’s death is a more difficult question.
The only medical witness to testify was John K. Fulton, M. D. The testimony of Dr. Fulton is extensively set forth in the record, followed by a summary of hospital records, doctors’ notes and nurses’ notes, all made during the decedent’s stay in Wesley Memorial Hospital up to the date of his death on January 5, 1968. The discharge summary prepared subsequent to the decedent’s death indicates the following concerning his prior medical history and eventual death:
“This 59 year old white male was readmitted to the hospital because of the development of a severe respiratory distress. He had been previously admitted twice before to this hospital, the initial admission being in August of 1966, following which he fared quite well, and was able to return to work for a year. IHe quit smoking after his first admission, but resumed smoking in 3 weeks. He returned in August of 1967, with a similar picture, but development of mild polycythemia, at which time venisection was done with restoration of the hematocrit to normal, and he was continued on steriods, bronchodilators, and was again off cigarettes and was able to work until October of 1967 when he sustained a fall at work, which seems to have injured his dorsal back, and this was followed by the development of severe pain in the back and chest, which may have prevented cough.
“Although it was slow, the patient eventually improved regarding his wheezing breath sounds, and became good enough so that he was able to discontinue oxygen and to go to the general floor, then seemed to deteriorate suddenly, became much more dyspneic, wheezed more severely, and was transferred back to special care. On 1-1-68 the patient suddenly became comatose with complete loss of all peripheral reflexes, and though his respirations continued good and his blood gasses reasonably satisfactory, the patient never regained consciousness. The coma corresponded with an elevation of temperature, which persisted until the time of his death.”
According to Dr. Fulton the cause of death was extensive pneumonia involving both lungs and complicating the emphysema. Dr. Fulton testified he first attended the decedent on August 15, 1966, and the decedent gave a history of a tendency to wheezing dyspnea since age twelve which had become more constant in recent years.
When Dr. Fulton was asked to relate in full the mechanism by which he felt the back injury was associated with the workman’s death he testified:
“Well, I stated that at that time in October he was said to have sustained a back injury while at work. This being associated with considerable pain on coughing, which in turn led to inhibition to cough by the patient with consequent accumulations of secretion in the bronchial tree. Also, apparently contracted bronchial infection about this time, and because of the severe back pain, was unable to combat this by the methods usually available by normal healthy people, namely, use of the normal cough mechanisms to expel the infected material. Being subject to chronic lung disease, the inability to raise these secretions was all the more disastrous, since his lung function was seriously compromised at death and the accumulation of this additional handicap precipitated the severe respiratory distress and necessitated the hospitalization, first at Lamed, and then at the Wesley Medical Center.”
Dr. Fulton testified:
“Q. All right. Now, did the back pain have anything to do with his ability to cough?
“A. It would in this respect, a cough would be more painful and therefore, would be something he would probably tend to involuntarily inhibit somewhat.
“Q. Did he tell you it hurt him to cough?
“A. Yes, he did.”
In Dr. Fulton’s opinion, based upon reasonable medical certainty, it was probable that the decedent’s back injury was one of the contributing causes of his ultimate death.
When the decedent was admitted to the hospital on August 16, 1966, X-rays of the chest were made which showed the dorsal spine to good advantage on the lateral film. At that time mention was made of a moderate degree of pulmonary emphysema but there was no mention of any abnormality of the dorsal spine.
A year later he was hospitalized again in August, 1967, at which time another chest film was taken. The statement made by Dr. Porter who read the film was, “No active chest disease is seen. Skeletal structures showed no gross abnormalities.”
On December 6, 1967, during the decedent’s last illness a chest X-ray was taken shortly after his admission. It showed, what was described by the radiologist as, essentially negative chest, X-rays of the dorsal and lumbar spine taken this same day showed no evidence of destructive change of traumatic, inflammatory, neoplastic origin in the bony component of the lower dorsal and upper lumbar spine. Degenerative changes were seen in the dorsal and lumbar vertebra.
Dr. Fulton testified:
“A re-eheck dorsal spine was taken the same day and compared with the previous examination of 12/6/67, and I’m quoting directly, the dorsal spine reveals marked osteoporosis and there is evidence of rather marked compression of deformities of the 6th and 8th dorsal vertebral bodies. These were not present in 1966, but in restrospect, are visualized in the previous chest film of 8/15/67. There is also a slight degree of wedging or collapse of the body of the 11th dorsal vertebra. The pedicles are fairly well visualized. Intervertebral spaces appear to be intact.”
The doctor testified these abnormalities were present on August 16, 1967, as shown by the X-ray, but he added, “the patient had not complained much of pain until his last admission.” He then testified:
“Q. All right. Doctor, let me ask you this, if this man complained that he had an accident on the 10th of October, 1967, how could the x-ray taken on— in August 16,1967, show this purported injury?
“A. Well, they wouldn’t have shown the new injury as a new finding, no, sir.
“Q. All right.
“A. What I’m trying to say is that I — the patient said that he fell, he said he hurt. I had every reason to1 believe that he hurt, but as far as saying that these x-ray changes were a result of the fall, I couldn’t say that, no, sir.
“Q. All right. As a matter of fact, all the x-ray changes seem to have taken place on August 16th of 1967, is that correct?
“A. Well, I wouldn’t say all, but at least, many of them were seen before.
“Q. The only changes that took place from August 16, 1967, and December 6,1967, were degenerative type changes, is that correct, Doctor?
“A. Yes, sir. . . . This man received and had to have a very long period of time, Prednisone, which is a sort of Cortisone for the treatment of his severe emphysema. This has an effect on bones of causing a weakening, softening of their structure, so that they are more vulnerable to injury, and very probably that was a contributing factor.
“Q. Now, back to the original, the pain, as I recall your testimony, this pain could have been caused from his Cortisone treatment, is that correct?
"A. Could have been contributed to by the Cortisone treatment.
"Q. Could it have been caused by the Cortisone treatment?
“A. Not alone, no.
“Q. What else could have caused it?
“A. The Cortisone alone doesn’t fracture the bones. There has to be some trauma, there has to be some force exerted against the bones.
“Q. The bones were fractured, is that correct?
“A. They were described as being wedged, which means probably a degree of fracture or compressing of the vertebra.
“Q. I see. Did I misunderstand you or did you say the Cortisone could have caused the wedging?
“A. It can weaken the bones to the point that they are more vulnerable to force or stress.
“Q. I see. And you are making this assumption based upon the x-rays that were taken 8/16/66?
“A. ’67.
“Q. ’67. All right. And they were wedged at that time?
“A. Yes.
“Q. Doctor, how long had the deceased been on the Cortisone treatments?
“A. He had been, I think, taking Cortisone, approximately from 8/15/66, until his admission on 8/14/67, and he had cut the dose down to the point that at the time he came back in the hospital in 1967, he was taking a fairly small dose of Prednisone, just two tablets, or 10 milligrams a day. This is considered a small maintenance dose and not an amount that generally produces osteoporosis very severely in men.
“Q. All right. Now, Doctor, based upon the x-rays taken on 8/16/67, in your opinion would that have been the condition that existed at that time, would that have been sufficient to cause the pain of which the deceased complained of when you treated him?
“A. He was not complaining of pain at the time he came in in August of 1967. He had tibe x-ray changes as observed in retrospect, but he was no.t complaining of symptoms from those changes.
"Q. (By Mr. DesJardins) Now, to your last paragraph of your report of February 20, you state that you did not care for Mr. Drake immediately following the back injury?
“A. No, sir.
“Q. Assuming there was a back injury.
“A. Yes, sir.
“Q. Did you consult with the physician that did care for him immediately after the purported injury?
“A. No, sir.
“Q. All right. Do you think he would be in a position, perhaps in a better position, to state as to what caused or didn’t cause Mr. Drake’s final condition?
“A. Well, I think Dr. Brenner would be in a better position than I to know what the exact relationship was to this fall, and the onset of his back pain. This was the history that was not foremost in the patient’s mind at the time he came to see me, and it wasn’t immediately brought out what the fall might have had to do with his severe respiratory distress.
“Q. I see. So in your opinion, Dr. Brenner would be the best one to be able to tell as about that?
“A. The relation between the injury and the pain, yes, sir.
“Q. Doctor, would it change your opinion now, thinking back, wherein it’s been stated that the purported accident happened on the 10th of October, 1967, the x-rays show the changes is August of ’67, does that change your opinion any?
“A. It doesn’t change my opinion about the existence of the pain, no, sir. Because the pain could be quite independent of the x-ray changes. He may have injured his back in an additional way that wasn’t clearly seen on the x-rays.”
The discharge summary of Dr. Fulton concluded: “The presumed cause of death- is the left cerebral artery thrombosis superimposed on long standing chronic bronchitis with chronic pulmonary insufficiency and threatening CO2 narcosis.”
In our opinion the record discloses substantial competent evidence to sustain the trial court’s finding that the injury the decedent sustained on October 10, 1967, was instrumental in part and was a contributing cause of the decedent’s death on January 5, 1968. A preexisting condition was aggravated by the back injury, which complicated the decedent’s progress and ability to recover. The record discloses a causal connection between the accidental injury the workman sustained and his death.
Although a workman is afflicted with a disease which eventually culminates in his death, neither he nor his dependents are thereby barred from the right to compensation, if the workman actually suffered an accident arising out of and in the course of his employment, and if such accident intensified or aggravated his affliction or contributed to his death. (Lee v. Lone Star Cement Co., 142 Kan. 349, 46 P. 2d 864; Shapland v. Ferguson Furniture Co., 139 Kan. 768, 33 P. 2d 145; and Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793.)
An analogy is found in Evans v. Western Terra Cotta Co., 145 Kan. 924, 67 P. 2d 426. There compensation was granted to the widow of a deceased workman who had a preexisting hernia condition. The deceased workman sustained an accident on the job and his hernia became strangulated and required surgery. Following surgery he died of a post-operative thrombosis, not related to the preexisting condition, or the injury at work. There was, however, a causal connection between the accidental injury the workman sustained and his death.
The judgment of the lower court awarding compensation to the claimant is affirmed. | [
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Per Curiam:
This is an appeal from an order overruling petitioner’s motion to set aside his plea and sentence pursuant to K. S. A. 60-1507, after a full evidentiary hearing.
Petitioner claims that he involuntarily entered a plea of guilty due to threats of the prosecutor to obtain the death penalty and the sentence was excessive. The district court found that petitioner at the time of his plea of guilty understood what he was doing; that he was represented by experienced and competent counsel; that his participation in the crime was unquestioned; that he was advised of the sentence possible under the charge and was informed he had the right to a jury trial; that the plea was freely and voluntarily made and the sentence imposed was in full compliance with the law.
In August, 1968, petitioner and three other defendants were apprehended for the brutal slaying of Robert Wayne Wood. Petitioner was die oldest in the group, being twenty-two years of age. The others were juveniles. Petitioner was initially charged with first degree murder. In April, 1969, one codefendant was tried and found guilty of first degree murder and sentenced to life imprisonment. A second codefendant was tried and acquitted. On June, 1969, after nine months of incarceration, petitioner entered a plea of guilty to the reduced charge of second degree murder and received a life sentence. Petitioner was represented by two retained attorneys. There was no direct appeal.
Petitioner argues that his plea was involuntary because he feared the death penalty would be imposed if he was found guilty of first degree murder. In the evidentiary hearing petitioner stated the prosecutor told him he would try to get the death penalty. Petitioner further testified his attorneys told him his chances were not good and his best bet was to enter a plea to a lesser charge. He testified the jailers also told him he didn’t have a chance. Petitioner testified but he did not call his two retained attorneys, the jailers or the county attorney to testify. Upon this showing the trial court was not required to find that petitioner had sustained his burden of proof by a preponderance of the evidence. The sentence was within legal limits.
The record shows petitioner was represented at the time of his plea by two capable attorneys, both retained, and entered his plea of guilty after careful questioning by court and counsel.
In State v. Byrd, 203 Kan. 45, 453 P. 2d 22, this court said in reference to a guilty plea:
“Generally speaking the court has attached substantial significance to whether or not the defendant was represented throughout by competent counsel; whether or not he was misled, coerced, mistreated or unfair advantage was taken and whether or not his plea was freely, fairly and understandingly made.
“. . . [T]his court has consistently held that when the accused is represented by capable counsel and the plea is freely, fairly and intelligently made and its consequences understood it should not be set aside.” (p. 52.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
The single issue in this appeal is whether the defendant-appellant was afforded speedy trial.
A scanty record on appeal supplied by the litigants raises many questions as to just what occurred at the trial level, as a consequence of which we have procured from the clerk of the district court the original court file together with copies of the clerk’s appearance docket and of the district judge’s trial docket.
Our canvass of all the foregoing reveals the following;
Ry information filed in the trial court October 27, 1970, appellant Darrell D. Higby was charged jointly with three others with the offenses of burglary and theft of property of a value of more than fifty dollars allegedly committed on or about July 8, 1970. Appellant filed his appearance bond November 5, 1970. He was arraigned December 10, 1970. On March 5, 1971, appellant filed four motions, variously entitled: Motion For Bill of Particulars, Motion For Discovery, Inspection, Copying or Photographing, Motion To Strike Jury Panel, and Motion For Production of Evidence Favorable to the Accused. The next event revealed by the record is the filing by appellant on April 8, 1971, of an instrument entitled Motion to Specify Time. In this motion appellant recited that on March 22, 1971, the court had sustained his motion for a bill of particulars and had ordered the state to file the same specifying the date and time of the alleged offenses but that the state had failed to do so. April 9, 1971, the state filed the requested bill of particulars. The record reveals no disposition of any of the other motions on file. However, in its brief with reference to them the state says: “These Motions were heard on March 22, 1971”. The state’s brief also recites: “The Appellant further requested the prosecution furnish all criminal records and rap sheets of any witnesses for the State as well as the Appellant. This was done as late as April 16, 1971.”
The next item revealed by the record with reference to appellant’s case is a minute in the judge’s trial docket stating: “6/9/71 Set for trial Sept. 20, 1971, 9 A. M. to jury”. Next is the filing August 9, 1971, of appellant’s Motion to Discharge, based on the state’s failure to bring him to trial within 180 days from the date of his arraignment. Evidently this motion was denied and appellant was tried and convicted September 20, 1971. On October 8, 1971, his motions for discharge and for new trial were overruled and he was sentenced. The record reveals that at the time these motions were ruled upon the trial court made the following remarks:
“Motion for discharge and for acquittal will be overruled. Of course at the time I ruled on the matter of not trying the defendant within 180 days, I want to reiterate that from now on everything is going to take place in the courtroom. This Court clearly recalls these delays were occasioned by the defendant and these attorneys unavailable delay, they couldn’t get out here to take the matter up and the Court granted their request over the telephone, but the motion will be overruled. I think clearly any delay that occurred in this case was occasioned by the defendant. Is there anything else, now?”
Section 10 of the Bill of Rights to the Kansas Constitution guarantees speedy trial to an accused. State v. Otero, 210 Kan. 530, 502 P. 2d 763, iterates the importance of this right.
K. S. A. 1971 Supp. 22-3401 provides:
“All persons charged with crime shall be tried without unnecessary delay. Continuances may be granted to either party for good cause shown.”
K. S. A. 1971 Supp. 22-3402 (effective July 1, 1970) provides:
“. . . (2) If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 180 days after arraignment on the charge, he shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).
“(3) The time for trial may be extended beyond the limitations of subsections (I) and (2) of this section for any of the following reasons:
“(a) The defendant is incompetent to stand trial;
“(b) A proceeding to determine the defendant’s competency to stand trial is pending and a determination thereof may not be completed within the time limitations fixed for trial by this section;
“(c) There is material evidence which is unavailable; that reasonable efforts have been made to procure such evidence; and that there are reasonable grounds to believe that such evidence can be obtained and trial commenced within the next succeeding ninety days. Not more than one continuance may be granted the state on this ground, unless for good cause shown, where the original continuance was for less than ninety days, and the trial is commenced within one hundred twenty days from the original trial date;
“(d) Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section. Not more than one continuance of not more than thirty days may be ordered upon this ground.”
In State v. Sanders, 209 Kan. 231, 495 P. 2d 1023, this court held that the purpose of 22-3402 is to implement and define the constitutional guarantee of speedy trial. The court further held:
“The obligation to bring a defendant to trial within the time provided by statute is on the State, and the defendant is not required to take any affirmative action.” (p. 234.)
Only the state is empowered to bring a criminal charge to trial; hence the duty of procuring prompt trial rests upon the state (see ABA Standards, Speedy Trial, Approved Draft, 1968, §2.2, p. 17); however, the ultimate responsibility for management of the trial calendar is in the trial court (ibid., § 1.2, pp. 11-12; ABA Standards, The Function of the Trial Judge, Tentative Draft, §1.1 (a), pp. 25-26; § 3.8, pp. 48-49).
Here 283 days elapsed between the time of appellant’s arraignment (December 10, 1970) and the date of his trial (September 20, 1971). Appellant asserts, and correctly so, the record reveals no motion or request by him for continuance and no order for con tinuance. Appellant also points out no question was ever raised concerning his competency to stand trial. He contends disposition is controlled by Sanders wherein conviction was vacated because of the state’s delay in bringing the accused to trial as required by 22-3402.
Appellee concedes, as it must, that the record contains no request by appellant for continuance and no order for the same but it nonetheless asserts the delay in trial was caused by appellant. In its brief appellee further says:
“On May 3, 1971, the State wrote to the Appellant stating that on May 14, 1971, at 10:00 A. M. the Appellant’s trial would be set down for June. The Appellant’s counsel, Mr. John Humpage, answered that he would not be available on May 14th but would be present on June 9, 1971, to argue pretrial motions. Copies of this letter went to the District Judge, defense co-counsel and the Clerk of the District Court. June 9, 1971, was 179 [szc] days after arraignment of the appellant and the pretrial motions were finally heard on that date.”
The foregoing does not appear in the record but, assuming its correctness, appellee does not clarify how it translates into trial delay by appellant beyond the crucial 180 days from arraignment, which period actually expired June 8, 1971. Just what pretrial motions remained to be heard is not shown. The Motion For Production of Evidence Favorable to the Accused, filed March 9, 1971, did request information regarding the criminal records of all witnesses to be used. If this motion was not passed upon by the trial court March 22, 1971, as stated in appellee’s brief, no reason is suggested for the delay in its processing. In any event June had become the critical month for trial purposes and the mere statement by the county attorney that on May 14, 1971, the case “would be set down for June” is of no moment. The presence of neither appellant nor his counsel was requisite to the initial setting of a trial date.
K. S. A. 1971 Supp. 22-3402 provides ample safeguards for the prosecution in bringing an accused to trial. Provision is made for extension of time both for the unavailability of material evidence and “Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case” within the allotted time. Neither of these statutory exceptions was brought into play.
Nothing in the record aside from the trial court’s remarks in denying the motion for new trial indicates the delay resulted from the application or fault of the appellant.
We must agree with appellant that disposition is governed by Sanders. There the case had been set for trial within the allotted statutory time (ninety days after arraignment where held in jail under K. S. A. 1971 Supp. 22-3401 [1]) but trial had not occurred within that period. The prosecution contended the delay was excusable as a result of the application or fault of the defendant. In denying a motion to discharge the trial court stated:
“Dan, I am going to overrule your motion. This case would have been tried in November, except that there was some land of a falling-out between this man and his then lawyer, Mr. Mermigis. I don’t know exactly what has happened since then. I’m not going to sustain your motion; I do respectfully overrule you.” (p. 235.)
Additionally just prior to his trial the defendant made the following statement:
“Well, when you were first assigned to my case, we discussed the other matter and you, yourself, put the trial aside then and postponed it.” (p. 234.)
Regarding the latter statement this court said:
“The record discloses this statement was made to defendant’s counsel. Since the court’s docket discloses no request by defendant’s counsel for continuance, the statement had to be based on what counsel told the defendant. Regardless of defendant’s understanding, and regardless of whether or not defendant correctly recalled counsel’s words, we find the record of the. proceedings is controlling.” (p. 234.) (Emphasis supplied.)
We would elaborate the foregoing: District courts are courts of record. Their proceedings of significance such as events touching upon the right to speedy trial are to be recorded. The only safe practice if the interests of the accused, the prosecution and the public are to be effectively protected is that those records shall control.
A safeguard in supplementing a defective record exists by reason of K. S. A. 1971 Supp. 22-3504 ( 2) which provides:
“Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.”
In the case at bar this authority was actually used. By journal entry dated April 7, 1972, and filed April 10, 1972, the trial court, after reciting that the original journal entry of conviction in the case could not be found, proceeded to state the fact of conviction on September 20, 1971, and subsequent sentencing. However, nothing was stated respecting trial delay although appeal had al ready been taken on that issue and nothing else by way of nunc pro tunc order accounts for that delay.
Here the case was never even set for trial within the allotted 180 days from arraignment. Trial occurred 283 days after that event. As in Sanders, the record reveals appellant was not afforded timely trial as mandated by K. S. A. 1971 Supp. 22-3402 and accordingly he must be discharged from liability for the crime charged.
The judgment is reversed and the cause is remanded with directions to set aside the conviction and sentence.
APPROVED BY THE COURT. | [
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Per Curiam:
This is an appeal from an order of the district court of Sedgwick county overruling petitioners motion to vacate (K. S. A. 60-1507). The question presented is whether the court erred in overruling petitioners motion without granting an evidentiary hearing.
Petitioner was arrested pursuant to complaint dated March 25, 1970, charging him with first degree robbery (K. S. A. 21-527) committed the previous day. He was taken before a magistrate, bond was set, he was declared indigent and an attorney appointed. He was represented by counsel at the preliminary hearing April 24, 1970, and bound over to the district court. April 28, 1970, petitioners case came on for arraignment and, represented by the same appointed counsel, he waived arraignment, jury trial and formal reading of the information and pled guilty. He was sentenced to not less than ten nor more than twenty-one years.
February 3, 1972, petitioner filed, pro se, his motion to vacate. His only ground for relief was that he had been denied the right to be placed in a “lineup of identification procedure” in violation of the fifth, sixth and fourteenth amendments to the federal constitution. The motion and memorandum attached did not allege any facts to show how identification of the prisoner was made. An accused has the right to a fairly conducted identification procedure but no special right to be placed in a lineup. Petitioner presented no facts as to the identification procedure in his motion and attached memorandum. Authorities cited by petitioner involve the right of an accused to a fair lineup and the presence of an attorney, where a lineup procedure is used.
The trial court denied the motion without an evidentiary hearing. Where a proceeding is brought under K. S. A. 60-1507 and files and records conclusively show the prisoner is not entitled to relief, it is not required that formal plenary hearing be held (Smith v. State, 199 Kan. 293, 429 P. 2d 103). The record here reveals petitioner’s plea was made with advice of counsel pursuant to the trial court’s questions: “Are you pleading guilty because you are guilty? . . . In other words, on or about the 24th day of March, you took about $200.00 in currency from the Payless Store .down on South Seneca? And a Timex watch belonging to Ellis Hamilton; in the presence of, and against the will of Ellis Hamilton; is that correct?”
Petitioner does not contend that the facts presented by his motion make a prima facie case of unconstitutional identification procedure, but contends the very vagueness and silence of the record as to method of identification of defendant as prime suspect should have raised a question in the court’s mind sufficient to warrant an evidentiary hearing. He cites Kansas cases reversing convictions based on coerced pleas. Since the matter of the voluntariness of the plea was not raised in the 1507 motion, but only by the trial court in its opinion, these case are not applicable. The record as to the voluntariness of the plea was much more complete than the record concerning identification procedures. The plea was made with advice of counsel. There is no allegation of incompetency of counsel in the 1507 motion or elsewhere. Petitioner’s motion and memorandum presented no issue of fact or law for consideration and denial of evidentiary hearing was warranted.
Judgment affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action for forcible entry and detainer originally filed in the county court of Greeley County, Kansas, in which Robert Graber, a tenant, contends he has been unlawfully and forcibly deprived of the possession of two quarter sections of farm land in Greeley County, Kansas. On appeal to the district court from an adverse decision in the county court judgment was entered for the plaintiff, Robert Graber, for the restitution of the premises and costs of the suit.'
Appeal has been duly perfected to this court but for the reasons hereafter stated the questions presented by the appellants for determination have become moot.
On the 1st day of March, 1961, Nelson Hobart and others, as landlords, leased a half section of farm land in Greeley County, Kansas, to Ben Graber of Tribune under a written lease. The written lease was for a term commencing July 15, 1961, and ending July 14, 1962. This written lease was renewed in writing from year to year, up to July 14,1968.
Robert Graber, the son of Ben Graber, had been farming the land during this period of time and continued to do so after the expiration of the written lease and its renewals. In the fall of 1968 Robert Graber sowed the half section to wheat in 20-rod strips, so that out of the 320 acres only 160 acres were seeded to wheat. The alternating strips were left unseeded.
On the 17fh day of January, 1969, Nelson Hobart by letter informed Robert Graber he was the sole owner of the half section of land in question which Robert was farming, and that he would send him a lease in the near future. The evidence disclosed there had been a drought for five years prior to 1969, and that it was dry in the early spring of 1969. The land was blowing badly. Some of the wheat had blown out. Mr. Hobart became dissatisfied with the blowing and on April 11,1969, wrote Lyle Griffin (defendant-appellant) requesting him to look at the land. Lyle Griffin found the land had very little wheat left on it; that it had blown badly and was still blowing. Thereupon Hobart wrote Robert Graber on April 14, 1969, inquiring as to whether he had worked the land or would release it to him. Receiving no reply he again wrote to Robert Graber on May 9, 1969, inquiring whether Robert Graber had worked the land to stop the blowing or whether he would release it to Mr. Hobart so that “the new tenant may work it.” Mr. Hobart received no reply and the land was not worked to stop the blowing.
Mr. Hobart then leased the land for farming to Lyle Griffin who went upon the premises and worked the land with a chisel to stop the blowing. He later planted milo on a portion of the half section which had been worked.
Only 40 acres of wheat remained on the half section after the blowing in the spring, and Robert Graber harvested the 40 acres of wheat which yielded 243 bushels.
On or about the 12th day of July, 1969, while Lyle Griffin was cultivating milo on the premises in question he was approached by Robert Graber and the two men had an altercation. To avoid violence Robert Graber left the premises, and since that time Lyle Griffin and Nelson Hobart (defendants-appellants) have been in possession of the premises.
Robert Graber consulted an attorney who conducted negotiations commencing May 20, 1969. Robert ultimately filed his action on the 21st day of May, 1970, to regain possession of the premises.
On the 20fh day of May, 1969, Robert Graber’s attorney wrote to Nelson Hobart advising Mr. Hobart that “Mr. Graber considers he has this land leased until March, 1970.” We regard this as an admission, binding upon Robert Graber, that he was claiming pursuant to an oral farm tenancy lease which ran from March 1, 1969, to March 1,1970.
On the 26th day of January, 1971, a notice was served upon Robert Graber reciting die various facts concerning the blowing of the land and its deterioration; that he did nothing to remedy or prevent the waste of the land and the crop; that after he had been given notice to correct the situation he failed to do so; and that Nelson Hobart thereupon instructed Lyle Griffin to enter upon the premises. After other recitals the notice stated Nelson Hobart, the owner, without forfeiting any of his rights, terminated the alleged tenancy of Robert Graber as of March 1, 1971, requiring Robert Graber to quit and deliver possession to Nelson Hobart not later than March 1,1971.
In the trial court the appellants contended Robert Graber was a tenant at will in the spring of 1969, and that by reason of waste being committed the landlord was entitled to take possession without giving notice of termination of the tenancy, relying upon K. S. A. 58-2509.
The trial court held evidence of waste was not admissible in an action of forcible entry and detainer, and no notice to terminate the tenancy having been given by the landlord, Robert Graber was entitled to possession. (Citing Kellogg v. Lewis, 28 Kan. 535.)
The trial court heard the matter on the 27th day of November, 1970, but its judgment was not journalized until the 27th day of February, 1971. It is not clear from the record whether the trial court had before it the notice to quit served by Nelson Hobart on Robert Graber the 26th day of January, 1971.
The facts giving rise to the cause of action herein occurred prior to the adoption of the new code of civil procedure before courts of limited jurisdiction. (L. 1969, ch. 290, effective January 1, 1970.) The journal entry recites that by agreement of the parties the matter was tried and determined under the old code of civil procedure before justices. Under article 13 of the old code, authorizing actions for forcible entry and detainer, judgments either before a justice or in the district court are not a bar to any after action brought by either party for claims not included in such judgments. (K. S. A. 1968 Supp. 61-1303, now K. S. A. 1971 Supp. 61-2303.)
An action for forcible detainer is strictly possessory in character. (Dineen v. Olson, 73 Kan. 379, 85 Pac. 538.) Thus, if the plaintiff in a forcible detainer action is no longer entitled to possession of the property, his action is subject to dismissal on the ground that any judgment which may be rendered will be -unavailing. In Mueller v. Seiler, 158 Kan. 440, 148 P. 2d 266, it is said:
“The general rule that courts will not ordinarily consider and decide a question where it appears that any judgment they might render would be unavailing is too well recognized to admit of any dispute. It has been applied frequently and under varied circumstances by this court. (See Dickey Oil Co. v. Wakefield, 153 Kan. 489, 111 P. 2d 1113, and cases there cited.) This is true notwithstanding the fact a decision on the merits of the appeal might result in a different judgment so far as costs of the action are concerned. . . .” (p.442.)
In Hall v. Briggs, 104 Kan. 277, 178 Pac. 447, the syllabus reads:
“An appeal by the plaintiff in a forcible entry and detainer case will not be considered on its merits where his right of possession will expire before a reversal would, in the usual course of procedure, become effective, and the time for which the defendant claimed a right of possession has already expired.”
The effect of K.S.A. 1968 Supp. 61-1303 (now K.S.A. 1971 Supp. 61-2303) involving actions in forcible detainer is discussed in a number of decisions which tend to support dismissal of an appeal as moot even though rights of parties may be affected thereby. In Moore v. Smith, 160 Kan. 167, 160 P. 2d 675, the court said:
“We have a number of decisions involving actions in forcible detainer which, it may be argued, support or tend to support dismissal of an appeal as moot even though rights of the parties may be affected thereby. We have gone far in these cases in saying that we will not consider the merits of an appeal from a judgment of forcible detainer rendered against a tenant claiming under a lease, after the lease has expired. (Mueller v. Seiler, 158 Kan. 440, 148 P. 2d 266, and cases there cited.) These cases are not persuasive on the instant issue for the primary reason that we have a statute (G. S. 1935, 61-1303) which specifically provides that judgments in actions for forcible entry and detainer ‘shall not be a bar to any after action brought by either party.’ Judgments in such cases not being res judicata, the reason for refusing to dismiss an appeal would in many cases, at least, disappear. It could not well be said that vital rights would be affected by dismissal if the former judgment is not a bar to subsequent action between the parties. In saying this we are not unmindful of the fact that in McHenry v. Hubbard, 156 Kan. 415, 134 P. 2d 1107, section 61-1303 was held inapplicable in certain cases. The statute, however, still stands and is pertinent in appraising our former decisions in forcible detainer cases. Furthermore, our conclusion here as to the sound rule to be applied would not be altered even if it could be shown to be inconsistent with some statements made in the forcible detainer cases.” (p. 172.)
With specific reference to the subject of moot issues on appeal in forcible detainer actions see the cases cited in Mueller v. Seiler, supra.
Decisions involving actions in forcible detainer must be distinguished from ejectment actions and cases involving an equity of redemption. (See State v. Downey, 198 Kan. 564, 567, 426 P. 2d 55; and Southwest State Bank v. Quinn, 198 Kan. 359, 424 P. 2d 620.) K.S.A. 1968 Supp. 61-1303 (now K.S.A. 1971 Supp, 61-2303) applies only to actions in forcible detainer.
On the facts in this case the landlord and his new tenant are in possession of the half section of farm land in question and have continuously been in possession of the entire tract since July, 1969. The appellee asserted, by his own exhibit introduced in evidence, he had an oral lease on the land in question until March, 1970. Assuming, without deciding, that the appellee had such an oral lease and that he held over beyond the expiration of the one year term for an additional year, he was given at least thirty days’ notice in writing prior to the expiration of the year ending March 1, 1971, that his tenancy was terminated as of March 1, 1971. Thereafter, he had no right to possession of the land, and any judgment this court right render concerning the appellee’s right to possession would be unavailing. (See K. S. A. 58-2505 and 2506.)
Accordingly, the judgment of the lower court is reversed with directions to dismiss the action.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Fatzer, C. J.:
This appeal arises from judicial, review of an administrative determination made by the Employment Security Board of Review (board). (K. S. A. 1971 Supp. 44-709 [i].) Irene R. Barnes and 65 other appellants (claimants) have challenged the judgment of the district court affirming the findings and conclusions of the board that their unemployment at appellee Inter-Collegiate Press’ plant (company) was occasioned by a work stoppage from a labor dispute in which they participated and that they were disqualified from the receipt of unemployment benefits pursuant to K. S. A. 1971 Supp. 44-706 (d). Seeking reversal, the claimants contend there was no substantial evidence to support the findings and conclusions of the board.
At the outset, this court’s scope of review of employment security cases is limited by K. S. A. 1971 Supp. 44-709 (i) which reads in pertinent part:
“. . . In any judicial proceeding under this section, the findings of the board as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law. . .
The pertinent facts of this case disclosed by the record may be summarized as follows: The claimants are employees in the company’s bindery, cover and announcement departments, and all are members of the National Brotherhood of Bookbinders Local Union No. 60 (union) which represents them for purposes of collective bargaining. The bargaining agreement between the company and the union expired on August 31, 1970. During July, 1970, the union and the company commenced negotiations on a new contract. Between August 31, 1970, and January 2, 1971, the date of the hearing before the special hearing officer, there had been twenty collective bargaining conferences. At a bargaining conference on October 15, 1970, the union rejected the company’s final proposal for a new contract, and the company rejected the union’s counter-proposal. On October 16, 1970, the company notified all the claimants they would be locked out until such time as a bargaining agreement was agreed to between the company and the union. The lockout commenced on October 16, 1970, at 3:30 p. m. In response to the lockout, the union immediately commenced picketing the company’s plant, which continued to February 2, 1971, the date of the hearing before the board.
Subsequent to October 16, 1970, the company made three proposals to the union to end the lockout. The first proposal was made November 9, 1970. At a bargaining meeting the company proposed that it would immediately end the lockout if the union would give it a no strike commitment through July 1, 1971. The proposal was rejected. The company’s second proposal was made on November 23, 1970, in a letter dated November 21, to the effect the company would immediately end the lockout provided the union would agree it would not strike any time between the date of resuming operations and June 30, 1971. That proposal was likewise rejected. The company’s third proposal was made in a letter to the union and to the claimants, dated November 24, 1970, that it would immediately end the lockout if the union would give a no strike commitment between February 1, 1971, and June 21, 1971. As part of this proposal the claimants were notified their employment relationship with the company was not terminated; that they could return to their employment at substantially the same wages, hours and working conditions as existed prior to the lockout, and they were instructed to return to work on June 21, 1971, if the lockout had not ended previously by the union’s acceptance of the company’s outstanding and continuing proposals to end the lockout. The letter also informed the union and the claimants that if the claimants did not return to work pursuant to that agreement, that new employees would be hired commencing November 30, 1970, to temporarily fill the positions vacated by the claimants. The third proposal was likewise rejected.
On February 2, 1971, the date of the hearing before the board, the labor dispute as manifested by the lockout and the strike still existed.
The company is primarily engaged in the printing of yearbooks, diplomas, and graduation announcements, although it does a con siderable amount of commercial printing. About 64 percent of the company’s yearly volume in yearbooks and announcements is shipped to customers between March and June. In order to meet production requirements for that busy season, the company expands its work force from approximately 235 employees in December to about 560 employees in June. The work force is increased to over 500 by mid-January and reaches a peak by the end of April. In the bindery department the work build-up does not begin until March or April when that department gets ready for the busy season, because the bindery is the final stage of production and that is when items of work begin to come to the bindery. At that point, the company hires temporary people to help in the bindery and there may be as many as 130 people working there at the peak of the season. Even with the increased number of employees, the company works a large number of overtime hours between March and June of each year. Work in the bindery department is the last stage of the manufacturing process in most instances, and the work of the claimants is the heart of the company’s manufacturing process. In short, if the company is not able to perform bindery operations on its announcements and yearbooks, it is not in a position to guarantee or to make deliveries to customers on a timely basis.
During the negotiations for a new contract, the company was of the opinion the union intended to engage in a strike of the bindery employees during the busy season in support of its bargaining demands. The union had engaged in such conduct in 1969. The company was also of the opinion it could not economically take a strike by the union during its busy season, and if a strike were to occur, the company would be at the complete mercy of the union. The company knew that the failure to meet delivery schedules would result in the permanent loss of a large number of customers; it would be in no economic position to resist the union, and would be forced to capitulate to the union’s demands in order to end the strike.
As indicated, the company offered to end the lockout provided the union would give the company a no strike guarantee through June of 1971. The proposal was made because it would permit the company to guarantee deliveries to customers on a timely basis and would allow the claimants to return to work without completely eliminating their right to strike in support of their bargaining de mands. The union rejected the proposal upon the ground the company would not make assurances to the union it would continue to negotiate during the period between November 30, 1970, and June 21, 1971. Despite the unions rejection o£ the proposal, the company still offered the claimants the right to return to their jobs as a means of ending the lockout and the proposal could have been accepted at any time prior to June 21, 1971.
The claimants, after being locked out and on a date not disclosed by the record, filed claims for unemployment compensation benefits pursuant to K. S. A. 1971 Supp, 44-709 (a) and Volume 2, Kansas Adminstrative Regulations, Employment Security Division Regulation 50-3-2. The record does not contain a copy of any claim setting forth the period for which benefits were claimed, or which alleged the purported date there was a cessation of the stoppage of work. Be that as it may, a special examiner for the Employment Security Division was appointed by the commissioner pursuant to K. S. A. 1971 Supp. 44-709 (b) to make a determination of the claims after such investigation as he deemed necessary. On or about November 20, 1970, following his investigation and hearing, the special examiner denied the claims. Thereupon the claimants perfected an appeal to a special hearing officer of the Employment Security Division pursuant to K. S. A. 1971 Supp. 44-709 (c).
On January 5, 1971, the appeal of the claimants was heard by the special hearing officer and the testimony of three witnesses, James W. Copeland, personnel manager for the company, Meryl A. Cooper, business agent for the union, and Mrs. Dorothy McKay, one of the claimants, was produced. The evidence of those witnesses is summarized and quoted as follows:
Mr. Copeland testified concerning the particulars of the labor dispute and the stage of production at the plant. Concerning the issue of work stoppage, he indicated the company reopened the bindery department on November 30, 1970; that employees hired were all interviewed by him; that all who were placed in the bindery department were advised their employment was on a temporary basis for the duration of the lockout, and that all of the union employees — claimants—were they to return to work that day, would have work to do at their regular jobs.
When asked about the activity in the bindery department from October 16, 1970, until it was reopened on November 30, 1970, Copeland stated, with one exception not here material, there was a complete work stoppage in the bindery department during that six-week period. He further stated that new work came into the bindery department during the six weeks from the commencement of the lockout until the department was reopened, but because there were no employees to man the machines, the work piled up and was “backlogged.”
When asked by counsel for the claimants as to the level of production, Copeland stated:
“Mr. Barnes: Now you did reopen the bindery department, and after you run the ad in the Star about November 29, you reopened and operated the bindery department with these people employed, is that right?
“Mr. Copeland: That is correct.
“Mr. Barnes: And it has been operated since that time by employees that you hired from the outside?
“Mr. Copeland: That is correct.
“Mr. Barnes: Is it in full operation at this time?
“Mr. Copeland: Pretty much so, yes.
“Mr. Barnes: Pretty much so; in other words, you are back in full production at this time?
“Mr. Copeland: Very close to it.
“Mr. Barnes: And how soon after November did you arrive at that full production?
“Mr. Copeland: This I couldn’t tell you, I would not be that closely related to the manufacturing process to see whether or not they are up to standard yet. I question whether they are up to standard now.
“Mr. Barnes: But you testified they are practically back in full production.
“Mr. Copeland: I will say that the machinery is manned, yes.
“Mr. Barnes: All right. The machinery is manned and your operation is going on normally as far as you know. Now the previous contract expired August 20, 1970, is that right?
“Mr. Copeland: No." (Emphasis supplied.)
“Mr. Barnes: Let we ask, Mr. Copeland, the book-bindery department is now in operation and there are people working there doing the same work these people were doing prior to the time that they left the department, is that right?
“Mr. Copeland: This is correct.”
Mr. Cooper testified concerning the labor dispute and the work stoppage. He stated that it was true the claimants could go immediately back to work if they wanted to accept one of the company’s proposals to end the lockout.
Mrs. McKay testified she originally thought she had been discharged by the company; however, the company’s letter to Mr. Cooper dated December 21, 1970, entered into evidence without objection by the claimants, clarified the confusion surrounding Mrs. McKay’s employment status. The letter indicates:
“So there is no misunderstanding, none of the locked out employees represented by your Union have been discharged by the Company. As you were previously told, all of these employees should report to work on June 21, 1971, if the lockout has not ended before that date.”
The record does not contain the special hearing officer’s decision disqualifying the claimants from the receipt of benefits. Upon the denial of their claims, the claimants perfected an appeal to the board. It appears the board, upon a review of the record concerning the ineligibility of claimants for benefits as determined by the special examiner and the special hearing officer, determined that the evidence was not conclusive as to the existence or cessation of a work stoppage, and it directed the taking of additional evidence pursuant to K. S. A. 1971 Supp. 44-709 (/) and Volume 2, Kansas Administrative Regulations, Hearing of Appeals, Regulation 48-2-6. • The record indicates the only sworn testimony before the board was that of Mr. Cooper. The remainder of the record consists of questions by the executive secretary of the board; questions by the members of the board and its attorney directed to counsel for the parties, seeking factual clarification of the issue of work stoppage, and the responses of counsel thereto. It should be noted that nowhere in the record were there formal objections to the factual responses of counsel.
Lengthy inquiry was made into two aspects of the previous adjudication. First, the board sought information as to whether the claimants could “establish a precise date or approximate date when the substantial stoppage of work ended?” Second, the board sought clarification of the degree of production of the company’s plant on or about that date.
With respect to the former aspect, Mr. Eisler, counsel for the claimants, stated, “. . . I think that date is on November 30” (Emphasis supplied) when the company began rehiring replacements to operate the bindery. He offered no evidence on behalf of the claimants in support of his supposition. When he was asked by the executive secretary whether the beginning date of hiring would be the date of the ending of the substantial stoppage of work, he responded, “I think this could be determined administratively.” Mr. Eisler stated in response to a question by a board member that there was a labor dispute involved and conceded that the claimants could return to work that day, and if they did, work would be available for them to perform. But, he conteñded, that if they returned to work they would be forsaking their lawful right to strike which they refused to relinquish, and that the company had chosen to keep them off work because it wanted a no strike agreement from the claimants. It was then that the executive secretary proceeded to make inquiry of Mr. Cooper as follows:
“Mr. Phalen: Mr. Cooper, I notice that you are the business agent for the bindery, do you have, of your own knowledge, some of this precise information that they (board) need. It’s really only two things. They need a date when the substantial stoppage of ivork ended . . . and [w]e need a date and we need some progression of return to work like about the 20th there was 10 went to work and about the 29th, about 30 more, and by December 15th there was 50. Can you give that kind of testimony?
“Mr. Cooper: No, there would be no way I could tell you how many people went in at any time. I mean they are back in production.” (Emphasis supplied.)
“Mr. Phalen: Let’s, if you can surround that, you are in the nature of an expert witness and if you can help the Board by giving this testimony a little bit more precise even though you didn’t ask for a hearing, you could be sworn, at least we have nothing now and if you added two or three to that, we’d have two or three, if you’re willing.” (Emphasis supplied.)
Whereupon Mr. Cooper was duly sworn.
“Mr. Calbert: Mr. Cooper, could you by chance give us a date when you feel by the activities at this plant that this substantial work stoppage ceased, whether it would be by the number of ears in the parking lot, the number of people that you were able to observe going in the plant, would you have any date that you could give us in this area?
“Mr. Cooper: I don’t know what date we could use or how long it would take to put them back, but I mean, they are putting them back on all their equipment, now, all the equipment at the present time is running, from which I’ve been told by Earl and others out there, and what their production output is I couldn’t say, but evidently they are in production in all of it. They have people on all the equipment at the present time. Normally, you can tell from the outside by their parking lot about what their normal parking facilities are for people in there, and I would say that they are in production now, 1 don’t know what per cent they would be putting out, but evidently they have been back to work since November, so they should be doing the work. . . .”
(Emphasis supplied.)
With respect to the latter aspect, Cooper’s testimony sheds light on his lack of knowledge of the facts surrounding the level of production at the plant. Moreover, his subsequent testimony even more graphically reflects the unavailability of evidence concerning the claimants’ allegation of cessation of the work stoppage.
“Mr. Phalen: Well, that’s all right. The first Sunday in December is the 6th, and the previous Sunday was November 29.
“Mr. Cooper: The 29th — that’s when the ad was in.
“Mr. Phalen: Well, we’ve got one thing established.
“Mr. Cooper: It would be the following Monday that people started applying for work.
“Mr. Phalen: Do you know that the following Monday people started applying for work?
“Mr. Cooper: Yes.
“Mr. Phalen: Do you know if some of them were hired as early as the following Monday?
“Mr. Cooper: Yes.
“Mr. Phalen: Were they hired through that week?
“Mr. Cooper: Well they’ve been hiring ever since.
“Mr. Phalen: Well, let’s just take that one week.
“Mr. Cooper: During that week, yes, because they were coming out through the lines.
“Mr. Phalen: Through your own knowledge, can you give us the figure of about how many they hired that week?
“Mr. Cooper: I don’t think I could, no.
“Mr. Phalen: Do you have any approximate figures?
“Mr. Cooper: I don’t really have any idea. I think they started hiring in the cover department first.
“Mr. Phalen: All right. I was asking about the, actually the week of December 6. Could you say about how many using the observation of the cars in the parking lot or the observation of the people going into the plant and leaving, through the end of December, about how many they have hired?
“Mr. Cooper: Well, possibly within two or three weeks they have what people they wanted to hire.
“Mr. Phalen: Which would be about 66?
“Mr. Cooper: Well, I couldn’t tell you because 1 don’t know what work they had in there at the present time. Well, they backlogged their work so they should have had plenty of work to fill every position.
“Mr. Phalen: You said they hired about the number of people they wanted to hire.
“Mr. Cooper: Well at that present time. They’re not in yearbooks, what they are doing right now is the backlog—
“Mr. Phalen: Lets not talk about right now, let’s talk about December.
“Mr. Cooper: All right. In December what they were picking up was reprint work which they had bacldogged at the lockout.
“Mr. Phalen: All right. About how many people were in the plant in December?
“Mr. Cooper: Undoubtedly around 60 members in the Bookbinders Union.
“Mr. Phalen: All right. Do you think that they had about what they wanted which would be 50 or 60 or 66 in December?
“Mr. Cooper: I imagine by about the third week in December, yes, they did have what they—
“Mr. Phalen: From your own knowledge, could you tell me about when they may have had as much as 30 workers?
“Mr. Cooper: Probably about the second week.
“Mr. Phalen: Could you make it firmer than probably?
“Mr. Cooper: Well, there is really no way that I could, because I really don’t know.
“Mr. Phalen: From your observation of the cars in the lot?
“Mr. Cooper: Yes, I would say by the end of the second week they had well over 30 people in there.
“Mr. Phalen: You’ve got more than you had,.” (Emphasis supplied.)
Certain other evidentiary matters were brought forth which tended to establish that while the equipment was manned, the work production of the bindery department was not what it normally would have been had the claimants been regularly operating the equipment. In response to a question by Mr. White, the board’s attorney, Mr. Engle, counsel for the company, stated that the entire bargaining unit of 66 claimants manning 66 jobs in the bindery department were locked out. When asked by the executive secretary, Mr. Phalen, whether some or substantially all of the 66 jobs had been filled since November 30, Mr. Engle stated:
“Mr. Engle: I would venture a guess that the company has probably had 100% turn-over in the first replacements.
“Mr. Phalen: How many — give a guess—
“Mr. Engle: I do not know how many of these 66 jobs are quote, ‘somebody’s working in them.’ 1 do know there’s been a substantial turn-over in temporary replacements.” (Emphasis supplied.)
In addition, Mr. Cooper testified there is apprenticeship training in the bindery department. He stated the apprenticeship program is “two years for a girl and four years for a man, but you are supposed to teach him more than one craft, which you normally do . . .” (Emphasis supplied.) Cooper sought to soften the plain effect of trained and experienced employees processing more work than the untrained temporary replacements by asserting that the company had rehired experienced former employees. When pressed by Engle to supply the names of former employees to support the statement, Cooper could only respond with one name— that of Roy Roush. After being pressed further, Cooper could not say whether Roush was working in the bindery or in fact whether he was working at all; rather, Cooper could only state that Roush was called back by the company. The executive secretary then stated that the relevant factors might be the degree of production and more important how many positions were filled in relation to the norm. Engle disagreed with the secretary’s priority with the number of filled positions, drawing the inference that while the company might “have 66 people there manning the equipment” they would “not be doing the work that -five normally do, if they don’t know what to do.” (Emphasis supplied.)
Finally, it should be noted there was evidence before the board concerning whether the company had refused work because of the labor dispute and what was the company’s expectation of sales for 1971. Mr. Engle stated that while the company had not refused any contracts because of the lockout, “they sure had some business going away,” and that after the lockout “they were backlogging work, anything they could get they backlogged.” When asked whether there was a substantial downtrend in 1971 as compared to average sales over the last five years because of the lockout, he stated the company was “expecting” the volume of business would exceed last year’s volume; that this year’s volume should exceed last year’s volume — “at least that was the pre-plan.” Mr. Engle further stated there were people working in the bindery department on a temporary basis “that are learning how to operate the equipment" and when asked whether the company “would be in normal operation” he denied that fact because “he didn’t know what the backlog is; he didn’t know how much of this work is going out on a timely basis.”
As indicated, the labor dispute disqualification for unemployment benefits in Kansas is found in K. S. A. 1971 Supp. 44-706 (d). That section reads:
“For any week with respect to which the commissioner finds that his unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed: Provided, That this subsection shall not apply if it is shown to the satisfaction of the commissioner that: (1) He is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work; and (2) he does not belong to a grade or class of workers of which, immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs any of whom are participating in or financing or directly interested in the dispute: Provided, That if in any case separate branches of work which are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each such department shall, for the purpose of this subsection, be deemed to be a separate factory, establishment, or other premises: Provided further, That for the purposes¡ of this subsection, failure or refusal to cross a picket line or refusal for any reason during the continuance of such labor dispute to accept his available and customary work at the factory, establishment, or other premises where he is or was last employed shall be considered as participation and interest in the labor dispute.” (Emphasis supplied.)
We are of the opinion that to invoke the disqualifying provisions of subparagraph (d), the board must find two basic elements. First, that the claimant’s unemployment is attributable to a “labor dispute” in which he participated, and second, it must further find that the unemployment is caused by a “work stoppage” occasioned by that labor dispute.
Passing on the former element, that a “labor dispute” existed in which the claimants participated, counsel for claimants conceded in oral argument that a labor dispute existed at the company’s plant from October 16, 1970, and contined as of the date of the hearing before the board on February 2, 1971. The record indicates the members of the union had commenced picketing of the plant, and in response to the lockout were striking the plant as of the date of the hearing before the board.
While this court has not determined whether a “lockout” is a “labor dispute,” the great weight of authority in other jurisdictions is that a “lockout” is one form in which a labor dispute may be manifested. (Basso v. News Syndicate Co., Inc., 90 N. J., Super. 150, 216 A. 2d 597; Oluscazak v. Florida Industrial Commission, 230 So. 2d 31 [Fla.]; Cameron et al. v. DeBoard; MacInnes et al., 230 Ore. 411, 370 P. 2d 709; Henzel et al. v. Cameron et al., 228 Ore. 452, 365 P. 2d 498; Schoenwiesner v. Division of Employment Security, 44 N. J., Super. 377, 130 A. 2d 648; Anno: 28 A. L. R. 2d 287.) Consistent with that general rule of law, the board has promulgated Kansas Administrative Regulation 50-3-1 (d) which explicitly recognizes a lockout as a form of labor dispute. Hence, we hold the element of unemployment attributable to participation in a labor dispute existed under the facts and circumstances of this case.
Before passing on the second element — the existence of a work stoppage — the board argues that the provisions of K. S. A. 1971 Supp. 44-706 (d) italicized above, to the effect that if a claimant refuses for any reason to accept his available and customary work he shall be deemed involved in a labor dispute, would disqualify the claimants from receiving unemployment benefits. It contends that when the claimants refused to go back to work, their unemployment was voluntary, and they should be denied benefits as a matter of law, regardless of the conclusion reached as to the ex istence of a “work stoppage.” We do not agree. Reading K. S. A. 1971 Supp. 44-706 (d) in its proper context, it is clear the purpose of the last proviso was to expand upon and define “participation in a labor dispute” rather than to erase the element of “work stoppage” as a condition to concluding that a claimant was disqualified for benefits under the statute. We hold that, to justify a determination of disqualification under the statute, the board must find the claimants were participating in a labor dispute, and their unemployment was caused by a work stoppage at the plant occasioned by the labor dispute.
The issue remaining is whether there is evidence to support the board’s determination that a substantial stoppage of work existed at the company’s plant because the bookbinders had not returned to work. This court has outlined the ground rules for judicial review of evidentiary matters under the Employment Security Law on prior occasions. First, review must be made in the light most favorable to the holdings of the administrative tribunal. (Clark v. Board of Review Employment Security Division, 187 Kan. 695, 359 P. 2d 856; Pickman v. Weltmer, 191 Kan. 543, 382 P. 2d 298; Boeing Co. v. Kansas Employment Security Board of Review, 193 Kan. 287, 392 P. 2d 904; Zimmerman v. Board of Review of the Employment Security Division, 208 Kan. 68, 490 P. 2d 359.) Second, in considering eligibility for unemployment compensation where the employment was terminated initially by a labor dispute, we have held the claimant has the burden of proving that his continued unemployment is not the result of the labor dispute but is caused by some condition beyond his control. (Pickman v. Weltmer, supra.)
The board’s decision in this matter reads in pertinent part:
“The majority of the Board, however, after reviewing all testimony, finds that there is still a substantial stoppage of work due to the fact that the bookbinders have not returned to their employment and that the employer herein is not operating substantially as they did prior to the commencement of the lockout.
“. . . The majority of the Board finds that the employer’s letter of November 30 informs all employees that they may return to work on June 21, 1971, at which time the lockout will end. The majority of the Board, therefore, feels that unless circumstances surrounding the facts involved in this dispute are changed between the elate of this hearing and June 21, 1971, that claimants herein will he ineligible until that date. Should, however, the fact situation change, the claimants should bring this to the attention of the special examiner and request another hearing in regard to the matter.” (Emphasis supplied.)
It must be emphasized that it is not the function of this court to weigh the evidence presented to the board. The board has expertise in the field of employment security matters and is the finder of the facts. In addition, in deciding whether parts of the record support the findings of the board, we are bound by the board’s criteria as to which statements are to have probative effect. In this respect, K. S. A. 1971 Supp. 44-709 (g) authorizes the board to adopt regulations controlling the conduct of hearings and “. . . appeals shall be in accordance with the regulations prescribed by the board for determining the rights of the parties, whether or not such regulations conform to common law or statutory rules of evidence and other technical rules of procedure. . . .” Pursuant thereto, the board promulgated Volume 2, Kansas Administrative Regulation 48-1-4, Conduct of Hearing. That regulation is applicable to the board’s review of findings of special examiners pursuant to 2, K. A. R. 48-2-2 (a) and reads in pertinent part:
“. . . The referee shall receive any evidence logically tending to prove or disprove a given fact in issue, including hearsay evidence and irrespective of common law rules of evidence. The referee, when the evidence is unnecessarily cumulative in effect or where the evidence neither proves nor disproves relevant facts in issue, may, on objection of appellant, claimant, or interested party, or on his own motion, exclude or prohibit any such evidence from being received. . . .”
As indicated, the factual responses of counsel for the claimants and counsel for the company were not objected to in the proceedings before the board. Those responses were to inquiries by members of the board or their representatives. Under those facts and circumstances, we are of the opinion those statements are relevant as logically tending to prove or disprove the disputed fact — whether the work stoppage ceased — so that the board may properly have given them weight and credence in making its determination. (2 Am. Jur. 2d, Administrative Law, § 384, p. 190; Parsons v. Board of Zoning Appeals, 140 Conn. 290, 99 A. 2d 149.)
The evidence is conflicting concerning the question of a resumption of normal production operations. The bindery department was opened and production to some degree commenced on November 30, 1970. Temporary employees were hired; the number of persons hired, was not definitively shown. Of the 66 positions available, the record shows from thirty to a full complement of temporary employees may have been hired. The turnover of replacements likewise was not definitively shown; however, there was evidence to establish that, if believed by the board, there was 100 percent turnover of first replacements. The company was experiencing difficulty in seeming new contracts but it was not refusing work because of the lockout, and it anticipated (the company’s “pre-plan”) that the 1971 volume of business might exceed that of 1970. Likewise, business accepted by the company after the lockout was backlogged and as of the date of the hearing before the board the backlog continued to be a factor. The contention that the company’s estimate of its volume of business for 1971 would exceed its last year’s volume, as contended by the claimants to show it had resumed normal production, could have been justly considered by the board as being merely the company’s expectation or forecast of its business possibilities for that year. It did not show conclusively that the company was back to normal production operations and the forecast could have been based upon the fact that no labor dispute would develop during the coming business year.
The claimants also contend the testimony of James Copeland is conclusive to indicate the work stoppage at the company’s plant had ceased effective November 30, 1970. We disagree. Copeland’s testimony, taken alone, is so qualified that a logical inference could be drawn by the board in support of either the claimants’ position or that of the company. There was no dispute that the temporary employees were attempting to perform the tasks in the bindery; however, Merle Cooper, the union representative, admitted that the apprenticeship period to train, for example, a “folder operator” was anywhere from two to four years. The evidence indicated that the machines were manned but there was no indication that the productive capacity of the plant had returned to the norm. Assuming all of the 66 claimants had been replaced with temporary help, there was no evidence that the replacements were doing the same work the claimants could have performed. On the contrary, the record shows that while the company might “have 66 people there manning the equipment” they would “not be doing the work that five (claimants) normally do, if they don’t know what to do.” Common sense dictates that an untrained employee is less valuable than the experienced employee who knows his way around, so to speak. It should be noted that none of the claimants were terminated. Had they wished to return to work, there was work for them; the lockout was stipulated to end as of June 21, 1971, regardless of the disposition of contract negotiations.
More compelling is what was not proven in the hearing before the board. The claimants could not establish a date when the work stoppage ceased; nor could they do more than speculate as to the number of temporary replacements that were hired. Responses to inquires concerning the number of temporary replacements varied from “[n]o, there would be no way I could tell you . . .” to, “[w]ell, I couldn’t tell you because I don’t know . . .” to, from 30 in the second week to 50, 60, or 66 in December. When inquiry was made into the level of production at the plant, the responses varied from ‘what their production output is I couldn’t say,” to, “I don’t know what percent they would be putting out.”
The district court, upon review of the board’s action in this case, concluded that the board’s determination should be affirmed:
“It is interesting to note that in the Pickman v. Weltmer case, 191 Kan. 543, which was cited by all of the parties, the court said: ‘Generally speaking, and with certain exceptions not here material, the benefits of the Employment Security Law are denied only when the unemployment is due to a labor dispute. Where unemployment is originally caused by a labor dispute, before an employee will be entitled to the benefits of the Act, he has the burden of proving that his continued unemployment is not the result of the labor dispute, but is caused from some other condition beyond his control.’
“It was admitted that the plaintiffs were unemployed because of a stoppage of work at the printing plant of Inter-Collegiate Press because of a labor dispute existing between the company and the Bookbinders Union, and their unemployment continued through February 2, 1971, because they were still unemployed because of a labor dispute at that time existing between the company and the union, and there was no showing that the stoppage of customary or normal work had ceased to exist for reasons beyond the control of the unemployed workers.” (Emphasis supplied.)
In Pickman we considered whether claimants were entitled to unemployment benefits after a labor dispute had ended. We concluded the claimants in that case would remain disqualified under 44-706 (cl) for a period immediately following termination of the strike which is reasonably necessary to physically resume normal production operations in the plant. While the facts and circumstances in that case are distinguishable from those of the case at bar, we adhere to the rule announced. In order to be eligible for unemployment benefits, the claimants were required to prove that the company had physically resumed normal production operations in the plant. The board concluded they failed to do so.
We have announced the rule of law limiting the scope of judicial review in Employment Security Law adjudication in Chadwick v. Employment Security Board of Review, 192 Kan. 769, 390 P. 2d 1017, wherein it was stated:
“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.” (I. c. 771, 772.)
This court does not intend to engage in protracted discussions of the difference between an affirmative finding of a “substantial stoppage of work” and a negative finding that the claimants failed to sustain the burden of proving that the work stoppage ceased. Suffice it to say technical distinctions may be made between the two. We are of the opinion the district court properly construed the conclusions of the board to indicate that the claimants had failed to prove the work stoppage had ended.
While we are mindful that the benefit provisions of the Employment Security Law are to be construed liberally in favor of the beneficiary, and provisions for disqualification are to be narrowly construed as constituting an exception to the Act, we hold the district court did not err in affirming the board’s determination and concluding the findings of the board place the appellants within the scope of the disqualification found in K. S. A. 1971 Supp. 44-706 (d). The claimants failed in their burden of showing that a work stoppage at the company’s plant had ceased, i. e., that the company had regained production to a point at which its business operations were substantially normal.
The claimants assert that K. S. A. 44-718 (b) precludes the assessment of costs against them as appellants in this case. We do not agree. In substance the statute provides that no individual claiming benefits shall be “charged fees of any kind” in any proceeding under the Act by the labor commissioner or his representative or by any court or officer thereof. It is unrealistic to suppose the Legislature intended that, in providing for judicial review of administrative findings of the board by the district courts of this state and by this court, costs and expenses of such a review would be considered as “fees” which are precluded from assessment by the statute. Generally speaking, fees are compensation for the performance of services, while costs are expenses allowed to a party which are incurred in the maintenance of a lawsuit. The court is of the opinion that 44-718 (b) does not preclude the charging of costs and expenses which were incurred in the maintenance of an appeal in the district court and in this court by the appellants as the claimants in this case.
In conclusion, we think it necessary to admonish the board, its representatives, and counsel for all parties that this court is not impressed with the diligence of investigation that has been exhibited by the record in this case. It should have been a routine matter of administrative procedure to subpoena the employment and production records of Inter-Collegiate Press in order to ascertain with factual precision whether the plant was back to normal production operations. Likewise, sworn testimony could have been secured at the hearing before the special hearing officer and the board, which could have demonstrated what elements were necessary to establish the existence or termination of the work stoppage. This record presents a classic example of the graphic need for an administrative procedure Act in this state. Until such an Act is passed, the board should keep in mind the admonition of this court in Kansas Public Service Co. v. State Corporation Commission, 199 Kan. 736, 433 P. 2d 572, with respect to the duty of administrative boards and commissions to make adequate findings of fact in determining controversies properly before them. We cannot say that the findings of the board are inadequate in this case, but a study of the record reveals that additional and more detailed findings would have been proper.
The judgment of the district court is affirmed.
Prager, J., dissents. | [
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|
The opinion of the court was delivered by
Schroeder, J.:
This is a post conviction proceeding conducted pursuant to K. S. A. 60-1507. The petitioner was granted an evidentiary hearing in the sentencing court and appeals from a judgment in the lower court denying relief.
In the criminal action out of which this proceeding arose the petitioner (appellant) was charged with first degree robbery under K. S. A. 21-527. He was represented by court-appointed counsel and entered a plea of guilty on October 30, 1968. On motion of the county attorney the trial court continued the sentencing of the petitioner for one week because the state announced its intention to invoke the provisions of the habitual criminal act. (K. S. A. 21-107a.) The state served written notice upon the petitioner and his counsel of its intention to invoke the provisions of the habitual criminal act after the entry of the petitioners plea of guilty.
On the 6th day of November, 1968, the date set for sentencing, the petitioner appeared in person and with his court-appointed counsel. The state introduced evidence of a prior conviction indicating the petitioner had previously entered a plea of guilty to the offense of uttering on January 17, 1962. Thereupon the petitioner was sentenced to a term of not less than twenty years nor more than forty-two years under the provisions of K. S. A. 21-107a.
On the 15th day of July, 1969, the petitioner filed a writ of habeas corpus in the sentencing court which the court treated as a proceeding under K. S. A. 60-1507. Counsel was appointed to represent the petitioner, and he was granted an evidentiary hearing upon an amended petition filed by his court-appointed counsel. The trial court, after having taken the matter under advisement, denied relief.
The appellant first contends he was not given proper notice of the state’s intention to invoke the provisions of the habitual criminal act.
The basic contention is that the appellant was entitled to notice of the effect of the habitual criminal act prior to his plea of guilty, and there is nothing in the record to show that he was advised of its effect.
After the entry of the appellant’s plea of guilty, there was a period of seven days that he had both oral and written notice of the state’s intention to invoke the provisions of the habitual criminal act. Due process does not require advance notice that the trial on the substantive offense will be followed by proceedings under the habitual criminal act. (Oyler v. Boles, 368 U. S. 448, 7 L. Ed. 2d 446, 82 S. St. 501.)
The issue here presented was previously before this court in Chance v. State, 195 Kan. 711, 408 P. 2d 677, where the court approved the trial court’s conclusion which states:
“ ‘It has never been the rule in Kansas that a defendant in a criminal action must be appraised by the State prior to conviction that the State intends to invoke the habitual criminal act. The rule followed in (sic) that a person convicted of a felony should ordinarily be timely apprised that an increased sentence will be demanded under the habitual criminal act between the time of the conviction and sentencing, in order that he may show cause, if any he can, why the act should not be invoiced and a higher penalty imposed. . . . The court concludes that petitioner was not prejudiced due to the failure of the State to advise him that the habitual criminal act would be invoked prior to the entry of his plea of guilty, or prior to the day of sentencing.’ ” (p. 715.)
A more recent decision following Chance is State v. Pappan, 206 Kan. 195, 477 P. 2d 989, wherein the court said reasonable notice is all that is required. Five days’ notice was held sufficient in State v. Bell, 205 Kan. 380, 469 P. 2d 448.
On the facts in this case the seven-day notice given to the appellant, after his entry of a plea of guilty, was sufficient to authorize the state to proceed under the habitual criminal act.
The appellant next contends he was not advised of his right to appeal by either court or counsel.
At the evidentiary hearing appellant’s prior court-appointed counsel testified that he had in fact notified the appellant of his right to appeal his plea of guilty. The trial court in its memorandum decision found that the petitioner had not sustained the burden of proof on this point.
This court has previously said there is no constitutional right involved by the failure of a court to advise the defendant of his right to appeal. (Nall v. State, 204 Kan. 636, 465 P. 2d 957.)
Lastly the appellant contends his plea of guilty was not freely, voluntarily and intelligently made because he did not understand the factual elements necessary to constitute the crime with which he was charged.
The appellant relies upon McCarthy v. United States, 394 U. S. 459, 22 L. Ed. 2d 418, 89 S. Ct. 1166, for the proposition that both state and federal courts must follow Rule No. 11 of the federal rules of criminal procedure, which provides that the court shall not accept a plea of guilty without first addressing the defendant personally and determining that the plea is made voluntarily with an understanding of the nature of the charge and the consequences of the plea, and that Judgment shall not be entered upon a guilty plea unless the court is satisfied that there is a factual basis for the plea.
The McCarthy decision was handed down following the appellant’s plea of guilty, and the trial court determined that McCarthy did not apply retroactively.
On this point the trial court’s determination was correct. The Supreme Court of the United States held in Halliday v. United States, 394 U. S. 831, 23 L. Ed. 2d 16, 89 S. Ct. 1498, that the decision in McCarthy was not applicable to guilty pleas accepted prior to the date of that decision on April 2, 1969, and that only those defendants whose guilty pleas were accepted after such date were entitled to plead anew if their pleas were accepted without full compliance with the rule.
On the facts in this case the appellant’s plea of guilty was entered on October 30, 1968, which was well in advance of April 2, 1969, the effective date of the McCarthy decision.
McCarthy was made applicable to the states as a requirement of due process through the Fourteenth Amendment in Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S.Ct. 1709. (See Widener v. State, 210 Kan. 234, 499 P. 2d 1123.)
The appellant herein was granted an evidentiary hearing, and the trial court after reviewing the record in the criminal proceeding found:
. . An examination of the transcript of the proceedings had at the time of said plea, and the testimony adduced at the hearing satisfies this court beyond any doubt that Mr. Wasson was fully informed and was adequately and capably represented, and that his application and petition herein should be denied.”
Our review of the record herein shows the appellant was questioned in detail as to his plea, that the charge had been discussed with his counsel, and that he was pleading guilty because he was guilty. Throughout the proceedings there was not the slightest indication of coercion.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from a conviction on two misdemeanor counts: (1) Turning back the odometer used for registering the mileage on a motor vehicle countrary to K. S. A. 1971 Supp. 8-611 (b), and (2) Committing a deceptive commercial practice contrary to K. S. A. 1971 Supp. 21-4403. The appellant was sentenced to be confined in the Sedgwick County jail for a term not to exceed six months and to pay a fine of $1,000 on each count, the sentences to run concurrently.
On appeal the appellant challenges the sufficiency of the evidence, the admission of exhibits and the legal propriety of charging him with the foregoing two counts because the second is duplicitous of the first.
On the 7th day of August, 1971, Junior D. Kliewer (defendant-appellant) hired and paid Sheila Van Orman to reset and turn back the odometer on a green 1969 Ford automobile. Mrs. Van Orman gave a receipt to Kliewer for the money paid and kept a copy. Her copy of the receipt was admitted into evidence. It indicated the date of August 7, 1971, disclosing the work was performed on a 1969 “Ford Galaxie 500” for K. & S. Motors, and that $6 was paid for the service. Mrs. Van Orman performed the aforementioned services on the property of K. & S. Motor Company, a company owned by Kliewer. On the 17th day of August, 1971, Kliewer sold the automobile to Mr. Gilbert Schrag. On December 16, 1971, a three count complaint was filed against Kliewer charging him with violations of: (1) K. S. A. 1971 Supp. 8-611 (b); (2) K. S. A. 1971 Supp. 8-611 (a); and (3) K.S.A. 1971 Supp. 21-4403.
The matter was tried to the court, upon waiver of a jury. At the trial Kliewers motion requiring the state to elect between count two and count three was sustained, and the state dismissed count two.
The trial court heard testimony from four state’s witnesses; Sheila Van Orman, the person who worked on the odometer of the 1969 Ford in question, R. K. Scholle, the original owner of the car, Gilbert Schrag, who purchased the car from Kliewer, and John Dickey, an investigator for the Sedgwick County Attorney’s office. Over the appellant’s objection the trial court admitted two state’s exhibits into evidence: Exhibit No. 2 — the application for certificate of title by R. K. Scholle giving the identification number and the description of the vehicle here in question; and Exhibit No. 3 — the application for certificate of title by Gilbert and/or Vida Schrag describing the vehicle in question by identification number and description. This application disclosed the vehicle was acquired by the Schrags from “K. S. Motor Co.”, 1620 North Broadway, Wichita, Kansas; and that it was accepted by the McPherson County Treasurer on the 19th day of August, 1971.
Assuming state’s exhibits 2 and 3 were properly admitted by the trial court, the evidence identifies a 1969 Ford Galaxie 500 automobile, green in color, by identification number, and shows a complete chain of possession from the original purchaser, R. K. Scholle, through Kliewer to the Schrags. Scholle testified he pm-chased the vehicle new, was engaged in the business of a mail carrier, and when he sold the vehicle it registered over 99,000 miles on the odometer. Mrs. Van Orman testified she turned the odometer back on the vehicle in question for which she gave a receipt to Kliewer evidencing payment of $6 to her for the services. Gilbert Schrag testified concerning his knowledge of the vehicle, its purchase, and acknowledged his signature on state’s exhibit No. 3, a copy of his application for title. John Dickey described the 1969 Ford in detail, having investigated it on the date of trial. He gave its identification number and testified the odometer reading was 56,-920.2 miles on the date of trial.
On the 25th day of February, 1972, the trial court found Kliewer guilty as charged on count one and on count three. Kliewer s motion for a new trial was subsequently overruled and he has duly perfected an appeal to this Court.
Count one of the information charges the appellant with unlawfully, willfully, disconnecting, turning back, and resetting the odometer on a 1969 Ford Galaxie 500 in violation of K. S. A. 1971 Supp. 8-611 (b). He was, therefore, charged as the principal in turning back the odometer. The evidence showed that he hired and procured Shiela Van Orman to actually perform the work. This is in accordance with K. S. A. 1971 Supp. 21-3205 which states in part:
“(1) A person is criminally responsible for a crime committed by another if he intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.
“(3) A person liable under this section may be charged with and convicted of the crime although the person alleged to have directly committed the act constituting the crime lacked criminal capacity or has not been- convicted. . . .”
The language of the statute clearly conveys the legislative intent enabling accessories, abettors, etc., to be charged and convicted of the crime as principals. In this case the appellant hired Mrs. Van Orman. The courts attention was first directed to 21-3205, supra, in State v. Edwards, 209 Kan. 681, 683, 498 P. 2d 48, where it was discussed and applied. Under 21-3205, supra, it is unnecessary that the appellant be advised of its provisions before they are applied and given effect. The prior Kansas Statutory Law and the decisions construing it on tire point asserted by the appellant — that he was charged as a principal, whereas the evidence at the trial only tended to incriminate him as an accessory — is consistent with the new code provision. The prior law was last reviewed by this Court in State v. Ogden, 210 Kan. 510, 502 P. 2d 654.
Under 21-3205, supra, one who intentionally aids, abets, advises, hires, counsels or procures another to commit an offense may be charged, tried and convicted as though he were a principal.
The Judicial Council note to 21-3205, supra, states the rule was intended to supersede former K. S. A. 21-105, which related to principals in the second degree and accessories before the fact. This section does not use the term “principal” but states the rule in terms of criminal liability. It makes no change in the substance of the prior law.
The appellant argues he came to trial to defend the charge that he turned back the odometer. He contends “other” was not mentioned in tlie information as required by K. S. A. 1971 Supp. 21-3110 (2), so that he could be tried as an accessory. The statute cited by the appellant is a general definition section of the New Criminal Code. Sub-paragraph (2) defines “another” to mean “a person or persons as defined in this code other than the person whose act is claimed to be criminal.” This definition has no application to 21-3205, supra, which does not contain any requirement that the person criminally liable be charged as an accessory.
The appellant contends that the trial court erred in admitting state’s exhibits No. 2 and No. 3 in evidence over his objection. First he asserts the exhibits were copies of applications for title and were not the originals. Second, he contends the exhibits were not under seal as required by K. S. A. 60-465; that he was never given copies of the exhibits before trial; and the state had listed as a state’s witness on the information an officer of the Motor Vehicle Department of the State of Kansas, but failed to call him as a witness.
Under K. S. A. 60-460 (o) a writing purporting to be a copy of an official record, or of an entry therein, is admissible to prove the content of the record as an exception to the hearsay rule, if it meets the requirements of authentication under K. S. A. 60-465. The rule is subject to K. S. A. 60-461. Under 60-465, supra, a writing purporting to be a copy of an official record, or an entry therein, meets the requirements of authentication if the judge finds that the writing purports to be published by authority of the nation, state or subdivision thereof, in which the record is kept; or evidence has been introduced sufficient to warrant a finding that the writing is a correct copy of tihe record or entry.
The record discloses Mr. Scholle, who originally purchased the Ford automobile in question new, identified exhibit No. 2 as bearing his signature. He described it as the title to the car that he traded in. He testified exhibit No. 2 was a fair copy and an accurate reproduction of it.
Gilbert Schrag identified exhibit No. 3 as bearing a copy of his signature. He described the exhibit as a copy of the title transfer which he signed sometime in August, 1971. He also described it as pertaining to the car that he purchased from Mr. Kliewer. He testified exhibit No. 3 was an accurate copy of what he signed.
The trial court, after hearing the foregoing testimony and the argument of counsel, admitted the exhibits in evidence as exceptions to the hearsay rule. Based upon the foregoing testimony and the' statutory sections cited, the trial court did not err in admitting exhibits No. 2 and No. 3 in evidence over the appellant’s objections for the reasons stated in such objections.
Since evidence was offered from which the trial court could find that the exhibits were correct copies of the originals, the exhibits were not required to be under seal.
Under K. S. A. 60-461 any writing admissible under exceptions (o), (p), and (q) of section 60-460, supra, shall be received only if the party offering such writing has delivered a copy of it or so much thereof as may relate to the controversy, to each adverse party a reasonable time before trial, unless the judge finds that such adverse party has not been unfairly surprised by the failure to deliver such copy.
Assuming, without deciding, that it was error for the trial court to admit exhibits No. 2 and No. 3 by reason of the failure of the state to deliver copies of such exhibits to the appellant’s attorney a reasonable time before trial, the appellant interposed no objection to the exhibits on this ground at the trial.
K. S. A. 60-404 states:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objections to the evidence timely interposed and so stated as to make clear the specific ground of objection.”
Under the foregoing statute the judgment or decision of the trial court based upon findings attributable to exhibits No. 2 and 3 cannot be reversed. (See, State v. Jolly, 196 Kan. 56, 410 P. 2d 267.)
A careful review of the record indicates there was sufficient evidence upon which the trial court could find the appellant guilty on each of the counts for which he stood trial. This court does not weigh evidence and is not concerned with inferences therefrom opposed to the findings. In a criminal action the function of this court on appeal is not to decide whether guilt was shown by the evidence beyond a reasonable doubt, but to ascertain whether there was, in the evidence, a basis for a reasonable inference of guilt. (State v. Phippen, 207 Kan. 224, 231, 485 P. 2d 336; State v. Satterfield, 202 Kan. 395, 397, 449 P. 2d 566, and cases cited therein.)
The appellant contends the intent of the legislature was to exclude automobiles from the operation of K. S. A. 1971 Supp. 21-4403 because the subject of automobiles was specifically dealt with in K. S. A. 1971 Supp. 8-611. It is argued the specific statute takes precedence over the general and the state elected to stand on the general when it dismissed count two of the information.
This point has merit.
Article 44 of our new Kansas Criminal Code (effective July 1, 1970) pertains to “Crimes Against Business”. In the code 21-4403, supra, defines a deceptive commercial practice as:
“(1) A deceptive commercial practice is the act, use or employment by any person of any deception, fraud, false pretense, false promise, or knowing misrepresentation of a material fact, with the intent that others shall rely thereon in connection with the sale of any merchandise, whether or not any person has in fact been misled, deceived or damaged thereby.”
Under Chapter 8, “Automobiles and Other Motor Vehicles” Article 6 pertains to “Fair Trade”. In K. S. A. 1971 Supp. 8-611 (effective July 1, 1969) the legislature addressed attention to unlawful acts pertaining to odometers, tachometers and other devices registering mileage on vehicles. This statute provides in part:
“(b) It shall be unlawful for any person to disconnect, turn back, reset or replace the odometer, tachometer or any other device used for registering the mileage or use of motor vehicles with the intent to reduce the number of miles or use thereof indicated on such gauge or device. . . .”
Without engaging in extended discussion, it appears to us the legislature was addressing its attention to virtually the same subject matter in each of these statutes. One is “Fair Trade” the other “Crimes Against Business”, and more particularly a deceptive commercial practice. The one (8-611, supra) is specific and the other (21-4403, supra) is general in its application, embracing a far greater range of activity pertaining to deception, fraud and misrepresentation of material fact.
These statutes are not repugnant to each other and may be reconciled. Harmony is made possible by the fact that 8-611, supra, deals specifically with the deceptive practice for which the appellant is charged, and 21-4403, supra, deals generally with the same deceptive practice. Under these circumstances, where there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute will be favored over the general statute and controls. (State v. Christensen, 166 Kan. 152, 157, 199 P. 2d 475; Moody v. Edmondson, 176 Kan. 116, 120, 269 P. 2d 462; Ferrellgas Corporation v. Phoenix Ins. Co., 187 Kan. 530, 535, 358 P. 2d 786; and Barten v. Turkey Creek Watershed Joint District No. 32, 200 Kan. 489, 506, 438 P. 2d 732.)
In Ferrellgas Corporation v. Phoenix Ins. Co., supra, the court said:
. . In our view, the cases cited by the court found that not only was the same field covered by the two statutes, but the provisions of the newer act were absolutely repugnant to the provisions of the older act. Where that is true, the older act must be held to be repealed. But as explained above, the two acts involved in this case are not actually repugnant to each other but each may be effective. In view of the fact that repeals by implication are never favored, and further because of the rule that a specific statute will be favored over a general statute, Dreyer v. Siler, 180 Kan. 765, 308 P. 2d 127; Ehrsam v. Borgen, 185 Kan. 776, 347 P. 2d 260, we are constrained to disagree with the learned judge.” (p. 535.)
On the facts in this case the appellant was charged and convicted on two counts for the same wrongdoing which constituted but one offense. Accordingly, the conviction and sentence on count three, charging the appellant with the violation of K. S. A. 21-4403, must be vacated and set aside.
The judgment and sentence of the lower court is affirmed on count one and is reversed on count three. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for damages for breach of a contract under which plaintiff held the agency for the sale of threshing-machine feeders manufactured by defendant.
Defendant is a foreign corporation not authorized to transact its corporate business in Kansas, and plaintiff resorted to two methods of service to bring defendant into court in Sedgwick county. One of these was to cause summons to defendant to be served on one J. Wirth Sargent, a member of a firm of lawyers in Wichita employed to look after defendant’s legal affairs. Mr. Sargent had busied himself about the matter of getting defendant’s machines, wares and other personalty shipped to St. Louis, and may have performed other services either directly for defendant or as a junior member of the law firm employed by defendant.
Another method of service was attempted through summons to defendant served upon the secretary of state in the manner authorized by the statute for service on foreign corporations which have received lawful authority to exercise their corporate activities in this state. (R. S. 17-504.)
The first method of service was sharply challenged in the trial court, and affidavits and other evidence were presented bearing upon the questioned agency of J. Wirth Sargent to accept or submit to service of summons on behalf of defendant. The trial court quashed the service on Sargent; and plaintiff’s appeal from that ruling is case No. 25,425.
Defendant’s motion to quash the service of summons through the secretary of state was overruled, and apparently defendant acquiesced in that ruling. It made a general appearance by filing a motion to strike out certain matter from plaintiff’s petition. (King v. Ingels, 121 Kan. 790, 250 Pac. 306.) This motion was sustained. Defendant then filed a demurrer to the petition, which was overruled; and defendant answered with a general denial.
The cause was heard at length, and at the conclusion of plaintiff’s evidence defendant lodged a lengthy demurrer thereto, setting up various grounds, one being that the contract was void for want of mutuality. The trial court ruled thus:
“It is my judgment, . . . that this contract is void for the lack of mutuality. It is further my opinion from a review of the evidence as I recollect it, that the damages shown or attempted to be shown are too remote, uncertain and speculative to form the basis of an action. The demurrer will be sustained as to each and eveiy cause of action.”
From this judgment plaintiff brings his second appeal, which is case No. 27,007.
Touching the first of these appeals, although the matter covers 101 pages of plaintiff’s abstract and 18 pages of his brief, it is perfectly plain that the question whether J. Wirth Sargent was an agent of defendant of such capacity that summons could be effectively served upon him has become purely academic and inconsequential, since the summons served upon the secretary of state was held valid and effective (correctly or otherwise), and issues were joined pur-' suant to that service. If what has just been said were not altogether sufficient to dispose of the appeal in case No. 25,425, it would have to be disposed of quite as summarily under the rale that the trial court’s determination of the question of fact — Sargent’s alleged agency — based as it was upon conflicting evidence, is conclusive.
(Betterment Co. v. Reeves, 73 Kan. 107, 114, 84 Pac. 560.)
Passing to case No. 27,007, the first error urged by plaintiff relates to the trial court’s ruling on defendant’s motion to strike out certain recitals from plaintiff’s petition. Such a motion is equivalent to a demurrer. (Norman v. Railway Co., 101 Kan. 678, 680, 168 Pac. 830.) An appeal from a ruling on such a motion must be taken within six months, otherwise this court has no jurisdiction to review it. (Civ. Code, §§ 565, 572; R. S. 60-3302, 60-3309.) Here the ruling complained of was made some time early in 1924, date not shown, but it must have been prior to April 24,1924, since plaintiff’s amended petition drawn in conformity therewith was filed on that date. This appeal was taken on February 25, 1926. Hence the error assigned on this ruling cannot be reviewed. (Jerald v. Houston, 120 Kan. 3, 242 Pac. 472.)
Appellant’s next specification of error relates to the trial court’s requirement that plaintiff should make his petition more definite and certain in some particulars. Such a ruling was well within the sound discretion of the trial court. It made for expedition in getting the case ready for trial and for economy of time in the trial itself, by clarifying the issues. Certainly no prejudicial error arose from such ruling. (Cribb v. Hudson, 99 Kan. 65, 160 Pac. 1019. And see Fox v. Ryan, 121 Kan. 172, 246 Pac. 520.)
Appellant’s third specification of error is concerned with the vital question in this lawsuit — the propriety of the trial court’s ruling on the demurrer. The petition with its attached exhibits in this case was very long, and complicated by the inclusion of many more or less pertinent details. It occupies forty-five printed pages of the abstract. It has been held that where the propriety of a demurrer to a petition is not clear, the opposing party may await the conclusion of plaintiff’s evidence, when it may thereby become quite manifest that plaintiff has no cause of action and the case may then be brought to a close by a ruling of the court on demurrer. (Mercantile Co. v. Rooney, 114 Kan. 840, 220 Pac. 1048, and citations.) Although a demurrer to a petition has been improperly overruled, no prejudicial error is committed if in the course of the trial, when the court pursuant to the introduction of testimony gets a better understanding of the nature of the action, it takes the case from the jury and sustains a demurrer to the cause or causes of action attempted to be stated in the petition. At all stages of a lawsuit prior to final judgment thereon, and before the expiration of the term in which such final judgment is rendered, and where no intermediate appeal is taken, the trial court has plenary power to correct or change its rulings as justice and a' better understanding of the case and its issues may require. (Burnham v. Burnham, 120 Kan. 90, 93, 242 Pac. 124, and citations.)
Passing for the present the point involved in the trial court’s ruling that the damages attempted to be established were too remote, uncertain and speculative to form the basis of an action, let us consider the correctness of the ruling that the contract was void for want of mutuality. The first contract, exhibit A, dated January 15, 1915, among less significant recitals stipulated:
“Party of the first pax*t [defendant] agrees to manufacture and ship to the party of the second part [plaintiff] such Heineke New Improved Feeders, fourteen-foot mounted extensions, and repairs as the party of the second part may sell in the territory below described, or buy outright for cash in advance, at the following piices and terms: . . .
“Rotary-style feeders, each $70 regardless of size.
“Crank-style feeders, each $75 regardless of size.
“Mounted extensions, 14 foot, $27.
“Repairs, forty per cent (40 per cent) off regular list price.
“Terms: F. O. B. faetoiy at Springfield, 111., due net cash October 15, 1915. Freight to be paid by first party on consigned goods, but to be collected and refunded to first party as the machinery is sold.
“The party of the second part agrees to remit promptly to the party of the first part the above-named purchase prices on all feeders and extensions sold by him for cash on delivery. On sales made partly for cash and partly on time the party of the second part agrees to remit to the party of the first part such a proportion of the above-named purchase price as the cash payment received bears to the entire selling price.
“Party of the second part further agrees to take all note settlements in the name of Heineke & Company on their regular printed form of note and mortgage blanks, to be furnished by the first party, and to forward same as soon as executed in the proper manner to the party of the first part, to be held as collateral to secure the account of the second party until' his accounts have been settled in full, at which time the party of the first part shall indorse the notes without recourse and deliver the same to the party of the second part.
“All the state of Kansas, except the northern tier of counties, and the territory in Missouri tributary to Kansas City.
“This contract expires November 1,1915, but if all provisions have been fully complied with the party of the second part shall have the right to renew same from year to year for three years with the understanding that in case the prices of belting and cotton duck should advance then the prices on feeders are to be increased a sufficient amount to cover such advances. However, in case the party of the second part should sell 150 or more feeders each season, and pay "for same according to contract, then the prices on feeders are to remain the same even though the prices of materials should advance.
“Heineke & Co.,
“Accepted: J. B. Van Deben. M. Heineke1.”
The next contract, dated November 8,1915, was substantially like exhibit A, but included Oklahoma in the area of plaintiff’s operations. It, too, bound defendant to manufacture and ship to plaintiff such feeders “as the party of the second part may sell.” The third contract between the parties, dated September 25, 1916, was to the same general effect, but also enlarged the plaintiff’s field of activity to include Texas and Colorado, and contained the following clause:
“It is mutually agreed and understood that in case the party of the second part shall sell forty (40) or more feeders during the season of 1917 in the states of Kansas, Oklahoma, Texas, and that part of Missouri tributary to Kansas City, and ten (10) feeders in the state of Colorado, and settles for same according to contract, this contract is to be renewed for a period of four years. In case the prices of materials which enter into the construction of the feeders should decrease and be as low as the prices which prevailed during the season of 1915, then the prices on feeders are to be reduced to $65 each for the rotary style and $70 each for the ’crank style.”
These contracts were attached to plaintiff’s petition as exhibits, as were also attached copies of certain letters of later dates which passed between the parties, and which may fairly be construed as having the same effect as the contracts of 1915, 1916, and 1917, set out above, but which for present convenience may be construed as successive renewals of these contracts with slight modifications. One such letter, dated January 13, 1921, after stating prices and terms for the year beginning November 1, 1920, contained the following:
“It is agreed and understood that the above-named prices are for the season of 1921 only, and that this agreement is' a supplement to contract entered into September 25, 1916, which does not change any of the provisions of said contract except for the change in prices above stipulated for this season only, and the time said original contract is to run is extended one additional year, that is, it is to run full period of four years from November 1, 1921.
“Hmneke & Company.
“M. Heineke.”
Appended to this letter was the following:
“Accepted this 13th day of January, 1921. By J. B. Van Deben.”
On May 9,1922, defendant wrote to plaintiff as follows:
“To J. B. Van Deren:
“You are hereby notified that owing to the fact that the undersigned has no valid contract with you . . .. the undersigned does hereby elect to rescind, cancel and declare at an end the purported contract dated the 25th day of September, 1916, and any and all amendments thereto and extensions thereof. You are hereby notified not to take any more orders for any of our products from and after the date of the service of this notice, and that any orders now in the hands of the undersigned company for actual sales will be filled by the undersigned.”
Under these successive contracts, so-called, what obligation did plaintiff undertake in consideration of defendant’s obligation to manufacture 'and ship to him such feeders as plaintiff might sell? Did plaintiff bind himself to sell any feeders? Not under the written terms of any of these'contracts. If he sold any feeders, he was to remit promptly on such as were sold for cash; and he was to remit promptly a proper proportion of whatever moneys were received in part payment, and he was to take notes in settlement in the name of defendant for feeders sold on time and to forward the same to defendant to be held as collateral to secure his own accounts. Plain tiff’s obligations if and when he might sell a feeder were fully defined, but he did not bind himself to sell anything. If he did not sell a single feeder, defendant would have no cause of action against him for damages for breach of contract. How then can defendant be held in damages for its repudiation of this imperfect obligation? Defendant did not fail to supply such feeders as plaintiff did sell. It merely put a period to a business relationship between itself and plaintiff under which the latter had no obligation to perform.
Plaintiff brings forward some plausible arguments to show that there was a mutual obligation, that plaintiff was bound “by an oral agreement at the time of entering into these contracts to advance the sale of the goods of the defendant.” But no mere allegations in pleadings nor parol evidence of precedent or contemporary oral agreements can be considered to supply vitiating defects in written contracts. It is not alleged that some material provision of the contract was inadvertently omitted by the scrivener, or by mutual mistake of the parties; nor does plaintiff ask that the contract be reformed. The instrument must therefore stand or fall as written. And it is essentially an imperfect contract. For the ostensible obligation which rests on defendant there is no complementary obligation resting on plaintiff nor any consideration passing from him to defendant. It is therefore fatally wanting in mutuality. (13 C. J. 331, 332, 339, 340; 6 R. C. L. 603, 648, 686-689.) In Fitzstephens v. Whan, 113 Kan. 650, 216 Pac. 269, this court said:
“To make a valid contract . . . there must be mutual obligations. What obligation did plaintiff undertake? What consideration passed from him to defendant? The evidence discloses none. Defendant could , not enforce any sort of liability against plaintiff. He was under no duty to do anything. Any relationship of plaintiff to the so-called contract could neither be the subject of specific performance at the instance of defendant nor could the latter recover anything for the breach of it. Essential elements of a contract are consideration and mutuality. These were wanting. . . . The contract was therefore abortive, a nudum, pactum.” (p. 651.)
Among the decisions in our own reports which hold that no recovery can be had for the repudiation or breach of an imperfect obligation such as the so-called contract relied upon by plaintiff, are: Woolsey v. Ryan, 59 Kan. 601, 54 Pac. 664; Railway Co. v. Bagley, 60 Kan. 424, 56 Pac. 759; Grow v. Davis, 110 Kan. 214, 203 Pac. 683.
To the same effect are: Bessire & Co. v. Corn Products Mfg. Co., syl. ¶ 3 (Ind. App.), 94 N. E. 353; Higbie v. Rust, 211 Ill. 333; Joliet Bottling Co. v. Brewing Co., 254 Ill. 215; Wickham & B. C. Co. v. Farmers Lbr. Co., 189 Ia. 1183; Steinwender-Stoffregen Coffee Co. v. Guenther Grocery Co. (Ky. App.), 80 S. W. 1170; International Shoe Co. v. Herndon (S. C.), 133 S. E. 202, 45 A. L. R. 1192; Hoffman v. Maffioli, 104 Wis. 630.
This class of contracts has been quite prolific of litigation in the federal courts, which with undeviating consistency have held them void and unenforceable for want of mutuality. (Crane v. C. Crane & Co., 105 Fed. 869; Cold Blast Transp. Co. v. Kansas City Bolt & Nut Co., 114 Fed. 77, 57 L. R. A. 696; A. Santaella & Co. v. Otto F. Lange Co., 155 Fed. 719; Velie Motor Car Co. v. Kopmeier Motor Car Co., 194 Fed. 324; Oakland Motor Car Co. v. Indiana Automobile Co., 201 Fed. 499.)
It therefore becomes unnecessary to consider other features of this lawsuit urged on our attention. The record contains no prejudicial error and the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The First Church of Christ Scientist sued the .¿Etna Building and Loan Association to recover $1,500 which plaintiff claimed to have advanced in payment of five shares of the capital stock of the defendant company purchased from the defendant and which it had refused to issue and deliver to plaintiff. At the close of plaintiff’s evidence the court sustained a demurrer to the evidence and gave judgment for defendant. On the motion for a new trial the court set aside the directed verdict and granted a new trial. From the order granting the new trial, the defendant appeals.
It appears that the defendant had a local agency at Burlington, named the Weaver-Hitchens Loan and Investment Company, and that the plaintiff through its treasurer made an application to the agency for the purchase of the stock in the defendant company. The application was accepted by the agency, and as a payment for the stock the plaintiff gave its check for $1,500 and turned over its bank book of a savings account of plaintiff in a bank which showed a sufficient deposit to meet the check. In the application it was stated that “payment of the entrance fee, $12.50, nonreturnable, and $1,487.50 in full prepayment of all dues, has been made by me and accompanies this application.” On that day the sum of $1,500 was charged against plaintiff’s account in the bank and a credit for the same amount was made in the account of the defendant’s agency. The agency at once forwarded the application with its own check for the amount paid to the defendant’s office in Topeka. Before the check reached the bank in regular course of collection the bank failed and when the check was presented payment was refused. Learning of the dishonor of the check, the company refused to issue the stock or to return the money therefor and this action followed.
There was no error in granting a new trial. The main question in the case was, did the tender of the check and bank book and the acceptance of the same by the loan and investment company, together with the transfer on the books of the bank, charging the plaintiff’s account with the amount of the check and crediting the same to the account of the loan and investment company, amount to a payment of cash to the latter? It was alleged that the loan and investment company was the duly authorized agent of the defendant to sell stock and to receive applications, for that purpose and also to receive the money therefor. In its answer the defendant in effect admitted that the loan and investment company was its authorized agent to sell stock and receive the money therefor, but it added that the agent’s action did not bind the defendant to issue stock upon a sale made “except for money actually paid into the hands of said agents.” There is, therefore, no question but that the loan and investment company, agents of defendant, had authority to sell the stock of defendant and to receive money as payment for it. The check was received by the agents, together with the bank book showing sufficient funds of plaintiff on deposit to meet the check. It was indorsed by them and presented to the bank where the amount was transferred and placed to their credit, and at the same time charged to the account of the plaintiff. That closed the transaction and we think was the equivalent of a payment in money. When the credit was given to the agents, the indebtedness of the bank to them became definitely fixed and they could have then drawn the money placed to their credit in the bank. While the delivery of a check of itself is not payment of an obligation or to be regarded as a payment in money, it has been said that “a credit given for the amount of the check by the bank upon which it is. drawn is equivalent to and will be treated as a payment of the check. It is the same as if the money had been paid over the counter on the check and then immediately paid back again to the account or for the use for which the credit is given.” (2 Morse on Banks and Banking, § 451.) In National Bank v. Burkhardt, 100 U. S. 686, the court quoted the following excerpt from an authority stating that it was a sound exposition of the law upon the subject and rests upon a solid basis of reason:
“But if at the time the holder hands in the check he demands to have it placed to his credit, and is informed that it shall be done, or if he holds any other species of conversation which practically amounts to demanding and receiving a promise of a transfer of credit, as equivalent to an actual payment, the effect will be the same as if he had received his money in cash, and the bank’s indebtedness' to him for the amount will be equally fixed and irrevocable.” (p.689.)
Other authorities having a bearing upon the question are Noble v. Doughten, 72 Kan. 336, 83 Pac. 1048; Tire & Rubber Co. v. Bank, 109 Kan. 772, 204 Pac. 992; Kesl v. Bank, 109 Kan. 776, 204 Pac. 994; Am. Nat’l Bank v. Miller, 229 U. S. 517; American Exchange Nat’l Bank v. Gregg, 138 Ill. 596; Jacobson v. Bentzler, 127 Wis. 566; Oddie v. the Nat’l City Bank, 45 N. Y. 735; 21 R. C. L. 69; Montgomery County v. Cochran, 126 Fed. 456.
We are of opinion that the transaction mentioned was substantially the same as if the agents of defendant had received a cash payment for the stock sold, and since the agents had authority to sell stock and receive payment therefor in money, the trial court under the evidence was justified in setting aside its ruling directing a verdict in favor of defendant and in granting a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by the owner of land lying outside a city to enjoin vacation of a street in the city. Injunction was granted, and the city appeals.
This is the third appearance in this court of litigation over a road which the district court has twice found is of little practical use as a road. (Bolmar v. Shawnee County, 109 Kan. 91, 197 Pac. 880; Bolmar v. Shawnee County, 114 Kan. 552, 220 Pac. 245.) To save making a synopsis, the reader is referred to the opinion in the second case, which contains a map of thé road and the property affected. After the decision in the first case, the city of Topeka extended its boundary to the railroad right of way. After the decision in the second case, the city vacated the road.
Among the legally protected interests which collectively constituted Bolmar’s property' with respect to his land, was privilege of ingress and egress by means of the road. This interest was not in fact affected by extension of the city limits. The street was still a means of access to the land, and the city merely acquired jurisdiction over it. Whatever the legal theory might be, vacation of the street in fact deprived Bolmar of his privilege, that is of property. The county could not vacate the road because Bolmar’s special interest, although of little value, would be invaded, and the injury could not be redressed by action for damages, the statute having made no provision for suing the county. The road, has now been regularly vacated by the -city under, statutory authority. Exercise of this authority creates liability on the part of the city for compen sation to one who is deprived of property. Assessment and- payment of damages are not conditions precedent to closing the road so long as the injured person has an action for damages. In this instance, the court is able to declare, as a matter of law from the findings of fact, that action for damages is an adequate remedy, and that injunction should not be allowed.
The city cites some authorities to the effect that a landowner whose land lies outside a city has no direct or substantial interest in the city streets. This coui’t declines to prophesy that under no circumstances can a rural landowner have that peculiar special interest in a city street which would authorize him to complain of its vacation. The general subject of who may complain because a street is vacated is discussed in the case of Heller v. A. T. & S. F. Rld. Co., 28 Kan. 625:
“Only when the injury is direct, when the individual suffers some special wrong, something different from that experienced by other members of the community, may the party injured challenge the action. It is not always easy to draw the dividing line between those cases in which the injury is direct and special, and those in which it is indirect and general. No one would for a moment suppose in the case-at bar that a citizen of Lawrence, owning no property in Topeka, could challenge this action, whether right or wrong. It is a matter which does not concern him. Equally plain is it, that one in the remote part of the city of Topeka has no such interest as justifies his interference ; but as we come closer to the vacated streets the question becomes more doubtful. Where a party- owns a lot which abuts on that portion of the street vacated so that access to the lot is shut off, it is clear that the lot owner is directly injured, and may properly challenge the action. The closing up of . access to- the lot is the direct result of the vacating of the street, and he, by the loss of access to his lot, suffers an injury which is not common to the public; but in the case at bar, access to plaintiff’s lots is in no manner interfered with. The full width of the street in front and on the side is free and undisturbed, and the only real complaint is, that by the vacating of the street away from her lots the course of travel is changed.” (p. 628.)
In the case of City of Belleville v. Hallowell, 41 Kan. 192, 21 Pac. 105, the commissioner who wrote the opinion said that only the owners of land abutting on “the alley” could claim damages for closing it (p. 195), and cited the Heller case. - Reference to the Heller case shows the statement was not intended as an announcement of a rule of law generally applicable, and the statement meant no more than that, in the case then under decision, the only property owners who had the direct and special interest which warrants claim for damages, were in fact abutting owners. The result is, the question whether a rural landowner may claim damages for vacation of a city street, is not to be determined in advance as a matter of law, but should be left open to be determined as a matter of fact according to circumstances.
The judgment of the district court is reversed, ■ and the cause is remanded with directions to the district court to deny the injunction.
Marshall, J., dissenting.
Harvey and Hopkins, JJ., concur in the judgment. | [
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The opinion of the court was delivered by
Harvey, J.:
Ray Cochran appeals from a verdict of guilty, and the judgment thereon, of being a persistent violator of the prohibitory liquor law. The information charges (omitting-formal parts):
“That on or about the 12th day of February, 1926, in the county of Cowley and state of Kansas, Ray Cochran did then and there unlawfully and feloniously have and keep intoxicating liquors in his possession for personal use or otherwise, and that the said Ray Cochran had heretofore been duly and regularly convicted of a violation of the prohibitory liquor law of the state of Kansas on the 2d day of March, 1920, in the district court of Cowley county, Kansas. That no appeal has ever been taken from said former conviction and the time for taking such appeal has long since passed.”
Defendant moved to quash the information for the reasons, (1) that it does not state facts sufficient to constitute a public offense, and (2) that it is indefinite, uncertain and vague, and does not inform defendant as to what he is charged with and is called upon to plead or defend against. The motion was overruled. Appellant complains of that ruling. He contends that the use of the disjunctive “or” in the phrase “for personal use or otherwise” renders the information uncertain, under State v. Meyer, 94 Kan. 647, 653, 146 Pac. 1007, and State v. Seeger, 65 Kan. 711, 70 Pac. 599, and that it fails to conform to our statute (R. S. 62-1005). This contention is not sound. The pertinent portions of the statute defining the offense of unlawful possession of intoxicating liquor read as follows:
“It shall be unlawful for any person to . . . have in his possession for personal use or otherwise any . . . intoxicating liquors . . .” (R. S. 21-2101.)
Now, it is rather obvious that “possession for personal use or otherwise,” as used in the statute, is tantamount to “possession for any purpose,” or simply to “possession.” In State v. Metz, 107 Kan. 593, 595, 193 Pac. 177, it was said the statute “denounces keeping in possession or having in possession, for personal use or under other circumstances, any intoxicating liquor. The gist of the offense is possession.” So, the information might have omitted the phrase “for personal use or otherwise,” since in its final analysis it adds nothing to, and takes nothing away from the gist of the charge, viz.: that defendant, at a time and place named, unlawfully had possession of intoxicating liquors.
But appellant contends that the purpose for which one has intoxicating liquor in his possession is, under our statute, an essential element to be considered; that the statute, either directly or in effect, recognized that there majr be a lawful possession of intoxicating liquors; that the. purpose of the possession is an issuable fact in every case, hence, that before a conviction can be sustained the state must allege and prove beyond a reasonable doubt, not only that defendant had possession of intoxicating liquor, but the purpose for which defendant had such possession, and that such purpose was an unlawful one. Although not stated in those words, this is appellant’s real contention, and he raised the question in the court below, not only by his motion to quash, but by a motion for a directed verdict in his favor, by instructions requested, by objections to instructions given, and by his motion for a new trial. In support of this contention appellant cites State v. Munson, 111 Kan. 318, 206 Pac. 749, where certain acts were held not to be possession within the meaning of the law, and State v. Metz, supra, where possession is defined, neither of which sustains his contention. He might have cited R. S. 21-2104, 21-2105, 21-2106, which provide that the statute (R. S. 21-2101) does not apply to the possession or use as therein provided, of wine for communion purposes, or of alcohol by wholesale or retail druggist, or by hospitals, schools and manufacturers. But these are in the nature of exceptions to the general rule by which, under R. S. 21-2101, every possession of intoxicating liquor is decreed to be unlawful. The prosecution is not required, in the first instance, to negative excep tions of this character, either by allegations in the information, or by proof (R. S. 21-2121). It may be argued this statute was a part of the general intoxicating liquor law (Laws 1881, ch. 128, as amended by Laws 1885, ch. 149), and was not intended to apply, and cannot apply, to an offense created by R. S. 21-2101 (Laws 1917, ch. 215). The answer to this is that all of our statutes pertaining to intoxicating liquors, considered together, constitute a system of laws for the suppression of the manufacture, traffic and use of intoxicating liquor, and each provision should be considered as a part of a common whole, the same as though all the provisions were enacted at the same time. (State v. Storm, 74 Kan. 859, 86 Pac. 145; State v. Berry, 103 Kan. 891, 176 Pac. 649; Norton v. Saline County Comm’rs, 118 Kan. 659, 236 Pac. 819.)
When one is charged with the unlawful possession of intoxicating liquor, and upon the trial the prosecution has produced evidence showing that defendant had in his possession intoxicating liquor, at the time and place as charged, such proof sustains the charge. If defendant contends that his possession of the intoxicating liquor was lawful, such contention constitutes a defense, and it is incumbent upon him to go forward with the proof tending to show the lawfulness of his possession. • This evidence the prosecution may rebut. Defendant is not, of course, required to' establish the lawfulness of his possession beyond a reasonable doubt, or even by a preponderance of the evidence, but, like any defense in any criminal case, before an acquittal is justified by reason thereof, the evidence pertaining thereto should be sufficient, when considered in connection with the evidence of the prosecution tending to prove the charge in the information, and evidence, if any, of the prosecution, tending to rebut the defense made, to create in the minds of the jury a reasonable doubt as to defendant’s guilt of the charge in the information.
Defendant complains of the following instruction given:
“All whisky is presumed to be intoxicating. While the law does not say that a man shall not drink intoxicating liquors, the law does provide that a man shall not keep in his possession intoxicating liquors for the purpose of drinking, or for the purpose of delivering to some other person such liquor for the use of such other person. AYhere it is shown by the state beyond a reasonable doubt that an accused was found with a quantity of intoxicating liquor in his actual possession, and such actual possession is unexplained, the jury would have a right to assume that such person had intoxicating liquor in his possession in violation of the law.”
The instruction is more favorable to defendant than he was entitled to have been given. The first sentence in the instruction is correct. (Intoxicating Liquor Cases, 25 Kan. 751; State v. Anderson, 121 Kan. 706, 249 Pac. 854.) Since there was no issue in the case as to the right of a person to drink intoxicating liquors, there was no necessity of referring to that question in the instructions. The instructions should be upon matters of law necessary for the jury in giving their verdict (R. S. 62-1447). The remainder of the second sentence is inaccurate. The statute (R. S. 21-2101) makes it unlawful for a person to have intoxicating liquor in his possession, unless such possession be for some of the specifically excepted purposes named in the statute (R. S. 21-2104, 21-2105, 21-2106). Since there was no evidence in this case concerning possession for such excepted purposes, and no issue joined thereon, reference thereto was unnecessary. When the state has shown beyond a reasonable doubt that the accused was found with a quantity of intoxicating liquor in his possession, the charge of unlawful possession of intoxicating liquor has been established; that is, there is no longer a mere assumption; the jury is not forced to exercise their “right to assume”; the proof is complete; the offense charged has been established by proof. Since there was no evidence in this case tending to explain defendant’s possession of whisky, the question of whether such possession was explained or unexplained was not an issue, and reference to that matter might have been omitted. There was no error in the instruction of which appellant can complain.
Appellant’s contention that the evidence does not support the verdict is based largely upon the point previously discussed, and is without merit. The evidence is that the police officers accosted defendant as he drove up and stopped in front of a hotel, searched him and found a bottle of corn whisky in his coat pocket. The matter of the previous prosecution is well alleged in the information and was established upon the trial, not only by the introduction of the court record of the former conviction, but also by testimony of a witness identifying the accused as being the same person who was convicted in the previous case. Appellant now raises no question as to the proof of prior conviction. Appellant was properly convicted of persistent violation of the intoxicating liquor law. (R. S. 21-2146.)
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This proceeding was’brought by plaintiffs who were directors of the Hopewell Cooperative Equity Exchange against the defendants, who were stockholders of the exchange, to obtain equitable contribution on liabilities assumed and paid by the plaintiffs in behalf of the members of the exchange. The exchange was a corporation organized to carry on the business of buying farm products and selling merchandise and supplies to its members and others in the community. Prior to June 12, 1918, the exchange found itself without sufficient funds to carry on the business, and the directors who had been providing money on their individual credit to keep it going, reported to the annual meeting of the stockholders the financial condition of the exchange. At that stockholders’ meeting, the directors asked the stockholders to join in raising a fund of $25,000 deemed to be necessary to continuing the business. To accomplish their purpose the members then voted to and did amend the by-laws of the exchange so as to authorize its officers to borrow the money necessary to transact the business and to execute notes for such loans and renewals as might be needed. On the same day the stockholders unanimously adopted a motion that each member of the exchange should sign up as security to a bank for the money needed to transact the business. The officials, with the consent of its members expressed in a resolution, decided to transact business with the Farmers State Bank of Hopewell, although before that time they had been doing business with the Macksville State Bank and had a deposit therein of $745.30. In accordance with the resolution a contract was prepared reciting:
“Know All Men by These Presents: That we, the undersigned, being stockholders or other interested parties in The Hopewell Cooperative Exchange, a corporation duly organized and existing under and by virtue of the laws of the state of Kansas, do hereby request the directors of said The Equity Exchange to bond and pledge themselves individually to The Farmers State Bank of Hopewell, Kansas, for the purpose of obtaining credit for said The Equity Exchange in the amount of twenty-five thousand dollars.
“Now, if the directors of said The Equity Exchange will so bond and' pledge themselves individually to said bank, we the undersigned stockholders hereby agree that we will reimburse said directors for any loss arising on account of said bond or pledge up to and including the sum of five hundred dollars each; it being our intention that each signer of this instrument shall stand individually liable for any sum up to and including five hundred dollars for the purpose of making said directors safe in signing said pledge, or bond, to said bank.
“In case any loss is sustained by said directors on account of said bond or pledge, we hereby agree promptly to reimburse said directors for said loss; it being distinctly understood, however, that no one stockholder shall be called upon to pay more than five hundred dollars.
“In Witness Whereof, We have hereunto set our hands this - day of June, a. d. 1918.”
This contract and obligation was signed by each member of the exchange. Following the proceedings at the annual meeting, and the execution of the writing quoted, the directors executed and indorsed notes upon which money was obtained for some time of the Farmers State Bank of Hopewell, but that bank with a capital of only $10,000 found itself unable to carry so large a loan as was demanded, and reported that it was not authorized to carry more than $6,000. Then the board of directors borrowed money at the Macks-ville State Bank sufficient to meet the obligations to the Fanners State Bank of Hopewell and took up the notes which they had previously and personally indorsed. The First State Bank of Macks-ville required the plaintiffs to become personally responsible for the loans made to the exchange and they did execute notes to that bank, first for the sum of $15,000 and afterwards from time to time the loans were increased to the amount of $22,000 and with the money so obtained they paid off the obligations to the State Bank of Hopewell, being the notes previously issued aggregating more than $23,000.
Plaintiffs alleged that a mutual mistake was made in the contract quoted in that it should have included after the name of the Farmers State Bank of Hopewell the words “and such other banks or persons as may be necessary.” Recognizing that the obligations of defendants sought to be enforced ran to the Hopewell bank and not to the Macksville bank from which plaintiffs had borrowed money and had assumed personal responsibility for unpaid loans, amounting to more than $15,000, plaintiff asked that the obligation executed by defendants should be reformed by adding the words “and such other banks or persons as may be necessary,” making it read so that defendants “pledged themselves individually to the Farmers State Bank of Hopewell, Kansas, and such other banks or persons as may be necessary.” The question of reformation was the only contested issue upon which proof was submitted. In the midst of the trial the court asked if the allegation and controversy was that of mutual mistake in making the contract, and counsel for both parties replied in the affirmative. Considerable testimony was offered on the subject, but wre are unable to find any substantial evidence in the record showing mutual mistake upon which reformation can be based. The defendants obligated themselves to the Hopewell Bank, and a number of them conceded their liability on the obligation as written until it had been discharged. They had of course the right to choose their obligee and their liability could not be extended to another without their consent. That the guaranty as written did not bind them to stand liability to other parties, was conceded by the demand of plaintiffs for reformation. A witness introduced by the plaintiffs to show mutual mistake, stated that the contract expressed the intention of the parties and that “nobody thought that the words ‘any other bank’ should have been inserted.” Another witness, one of the plaintiffs, testified that no one suggested that there was a mistake in the contract, and when the court called his attention to the allegation in his petition that a mistake had been made he replied, “I do not know that I said there was a mistake or not.” Another witness for the plaintiff, when asked if he had dis covered that the bond ran to the Hopewell bank, stated that his attention had not been called to the matter of mistake until shortly before the suit was brought and that he did not dream of there being' a mistake until his counsel told him. After the admission of this testimony which was all that was offered by plaintiffs touching mutual mistake, the defendants filed a demurrer to the evidence which the court overruled. It is manifest that the evidence offered by plaintiff did not clearly and affirmatively show grounds for reformation and hence defendants’ demurrer should have been sustained. The defendants then offered testimony on the question, but their testimony did not aid in making out a case for plaintiffs. Witness after witness connected with the transaction came upon the stand and testified that the contract as made expressed the agreement or intention of the parties that previous to the execution of the contract a resolution had been adopted to do business with the Hopewell bank; that they understood that they were signing an obligation to that bank; that their guaranty was not to be extended to any other, and that the contract signed stated the intention and wishes of the defendants as expressed at a previous meeting of stockholders. No witness gave affirmative testimony that a mutual mistake had been made in regard to the omission of words sought to be inserted in the contract. Under the evidence the contract sought to be established is not the one which was in the minds of the parties when the contract was executed. The remedy or reformation may be invoked to ascertain and enforce a contract actually made, but it can never be employed to make a new contract nor to supply terms upon which the minds of the parties never met. As to the measure of proof necessary for the reformation of an instrument on the ground of mutual mistake, it has been determined that it must be clear and convincing. “It is not enough that it shows a probability of mistake, but there must be a moral certainty of it; in other words, it must be established beyond a reasonable doubt.” (Bodwell v. Heaton, 40 Kan. 36, 39, 18 Pac. 901.) In Brundige v. Blair, 43 Kan. 364, 23 Pac. 482, it was held that “to authorize a court to rectify a contract, and insert other and additional terms and conditions therein, the proof must be full, strong and clear, and the facts shown beyond reasonable controversy.” (Syl. ¶ 1. See, also, Schaefer v. Mills, 69 Kan. 25, 76 Pac. 436; Kratz v. Padfield, 111 Kan. 396, 208 Pac. 776.) Plaintiff calls attention to another agreement introduced in evidence which was made by some of the defendants about six years after the execution of the one which plaintiffs asked to be reformed. That agreement, however, was not pleaded nor made the basis of the judgment that Was entered. It will be time enough to consider the effect or liability upon that instrument when an action is brought thereon. Considerable is said in the brief about subrogation which was pleaded in the second count'of the petition, but that question was not considered or determined by the trial court as its judgment indicates. The consideration of the court was confined to the matter of reformation of the contract of June, 1918, and the record discloses that the judgment went no further than that the contract should “be changed and reformed as prayed for in plaintiffs’ petition.” We can only review rulings on matters determined by the trial court, and therefore the questions as to subrogation or other questions not determined by that court are not open for consideration or decision here. For the lack of evidence essential to a reformation of the instrument in question, the judgment must be reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff, as assignee, sued the defendant to recover $6,541.21 earned by the Standard Engineering and Construction Company under a contract entered into between that company and the defendant providing for the construction of a highway in Cheyenne county. Judgment was rendered in favor of the plaintiff for $4,745.71, and the defendant appeals.
The petition alleged, and the evidence of the plaintiff tended to prove, that the Standard Engineering and Construction Company had entered into a contract with the board of county commissioners of Cheyenne county for the construction of about fourteen miles of public road in Cheyenne county for the sum of $59,601.84; that, to obtain funds with which to carry on the work, the construction company entered into an arrangement with the plaintiff bank by which the bank agreed to furnish money to the construction company to pay for labor and material, and the construction company agreed to place the money received by it for the construction of Ihe highway in the bank to be used by the bank in payment of notes which had been given by the construction company to obtain the money with which to pay for labor and material; and that the construction com pany had given an order to the board of county commissioners of Cheyenne county as follows:
“To the Board of County Commissioners of Cheyenne County, Kansas: You are hereby authorized and instructed to pay over to the Citizens State Bank of St. Francis, Kan., all moneys that may become due us for the construction of Federal Aid Project No. 145, as estimates are allowed, the same to be placed to our credit with said bank.”
That the order was received by the county clerk and placed on file in his office; that the construction company performed work under the contract for which estimates were made by the engineer and payments were made according to the contract, which payments were placed in the bank to the credit of the construction company; and that a warrant was drawn by the county clerk for $6,541.21 made payable to the construction company, but was never delivered to it. The action was to recover the amount of that warrant.
The defendant pleaded, and there was evidence which tended to prove, that the board did not accept the order to it made by the construction, company to pay over to the Citizens State Bank the money that might become due for the construction of the road. The record of the meetings of the board of county commissioners showed that they considered the order to pay the money over to the bank, but on the advice of the county attorney, the order was not accepted by them. The defendant demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action, but that demurrer was withdrawn. At the commencement of the trial, the defendant objected to the intioduction of evidence by the plaintiff on the ground that the petition did not state facts sufficient to constitute a cause of action against the defendant. The defendant demurred to the evidence of the plaintiff on the ground that it did not prove facts sufficient to constitute a cause of action against the defendant. The objection to the introduction of evidence and the demurrer thereto were both overruled. A jury had been impaneled and at the conclusion of the evidence, the court on the application of the plaintiff directed the jury to return a verdict for the plaintiff for $4,745.71.
In a motion for a new trial, the defendant urged erroneous instructions of the court; that the verdict was wholly contrary to the evidence, was not sustained by sufficient evidence, and was contrary to law. There was evidence which tended to prove that the con struction company abandoned the work before its completion, but that matter is not urged by the defendant as a reason for reversing the judgment.
1. It is argued that the petition did not state facts sufficient to constitute a cause of action, and that the objection by the defendants to the introduction of any evidence under the petition should have been sustained. The allegations of the petition have been briefly stated. It stated facts which, if true, showed that the plaintiff was entitled to recover.
2. It is urged by the appellant that the order to the board of county commissioners did not constitute an assignment to the plaintiff of the rights of the construction company under the contract, and that the defendants could not be bound by. the order until they had consented thereto or agreed to do as therein directed. It may be conceded that the order alone did not constitute an assignment of the right of the construction company to any money that had been earned by it under the contract, but there had been, previous to the delivery of the order, an assignment of that right by the construction company to the plaintiff.
Rights in action under contracts may be assigned, and the assignee may recover thereon. (Krapp v. Eldridge, 33 Kan. 106, 5 Pac. 372; Rullman v. Rullman, 81 Kan. 521, 106 Pac. 52; Hull v. Bonding Co., 86 Kan. 342, 120 Pac. 544; Hall v. Terra Cotta Co., 97 Kan. 103, 154 Pac. 210; Currant v. Longer, 107 Kan. 107, 190 Pac. 432; Jenkins v. Insurance Co., 112 Kan. 552, 556, 212 Pac. 363.)
In National Bank v. City of Ottawa, 43 Kan. 294, 23 Pac. 485, it was said that:
“A banking corporation organized under the laws of the United States can take an assignment of the money due and’to become due from a city of the second class, on a contract for paving a street, from the contractor, to secure an existing bona fide indebtedness by the contractor to the bank.”
In 15 C. J. 663, the following language is found:
“Claims against a county may be assigned, and such assignment is binding on the county on notice thereof being given to the county board, or to a member thereof.”
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.;
This action arose under the compensation law. Plaintiff was injured by falling from a scaffold while painting the interior of a business building in Wichita. The defendant, his employer, paid plaintiff $435 as compensation, at the rate of $15 per week for 29 weeks following his injury; after which period payments were stopped, on the assumed ground that plaintiff’s incapacity had ceased. ■ This action followed.
An advisory 'jury returned a verdict in favor of plaintiff in the sum of $1,700, together with certain special findings of fact:
“Special Questions Submitted by the Plaintiff.
“1. Do you find that the plaintiff received injuries as alleged in his petition and sustained therefrom a total disability to work for a length of time? A. Yes.
“2. ... (a) How long in the past the plaintiff has sustained such total disability? A. Twenty-six weeks.
“(b) How long do you find that the plaintiff will sustain a total disability to perform work in the future? A. None.
“3. If you find that the plaintiff has sustained a partial disability to work or earn wages,
“(a) Is such partial disability to work permanent? A. No.
“(b) If not permanent; how long will it continue, or do you find it has . ceased, and if so, when did it cease? A. We do not know.
“4. What expense do you find the plaintiff has incurred for medical attention during the first fifty days following the accident? A. $75.....
“Special Questions Submitted by the Defendant.
“5. . . . State: (a) Whether plaintiff has been partially incapacitated since his total incapacity from labor ceased; (b) Whether the plaintiff will be in the future partially incapacitated from labor by reason of said injury. A. (a) Yes. (b) Yes.
“6. If you answer.question number five in the affirmative, then state: (a) How many weeks after total incapacity ceased plaintiff was partially incapacitated; (b) How many weeks will plaintiff be partially incapacitated from said injuiy in the future? A. (a) We do not know, (b) We do not know.
“7. If you answer number five, in the affirmative, then state: (a) How much the plaintiff has been able to earn during his partial incapacity from labor; (b) How much plaintiff will be able to earn in the future during his partial incapacity? A. (a) We do not know, (b) We do not know.
“8. If you find that the plaintiff was injured and disabled, state what extent in percentage the use of his ankle has been limited. A. Twenty-five per cent.”
Plaintiff filed a motion to set aside most of these findings, also a motion for judgment for $4,698 “on the special findings and the undisputed evidence, notwithstanding the general verdict.” These motions were overruled.
Defendant filed a motion to set aside the general verdict and for judgment in its favor in accordance, with the special findings, and that defendant be given a credit thereon for the sum of $435 admittedly received as compensation during plaintiff’s disability. This motion was allowed. The trial court made a computation based upon the jury’s special finding of total incapacity for 26 weeks at $15 per week, $390, plus $75 expense incurred by plaintiff for medical attention, totaling $465, less a credit of $435 for payments theretofore made by defendant to plaintiff, and gave judgment for the balance, $30, in favor of plaintiff.
Plaintiff appeals, contending first that the trial court erred in setting aside the general verdict. This court can discern no evidence upon which such a verdict could be based. Plaintiff relies upon the jury’s special finding of plaintiff’s continuing partial incapacity and that the use of his.ankle had been limited 25 per cent. But whatever significance should be attached to these findings (to be considered later) they furnish no basis for a verdict of $1,700.
Error is assigned in overruling plaintiff’s motion to require the jury to return to the jury room and answer the question how long in the future the plaintiff would be disabled, also to require the jury to answer plaintiff’s question 3 (b) and defendant’s question 6 (6). On this point the record reads:
“The Court : That will be overruled. I don’t blame them for answering it like they did.”
Appellant invokes the rule that the failure of a jury to return sufficient answers to special questions is prejudicial error which requires the granting of a new trial. But that rule pertains to cases where some competent and trustworthy testimony has been adduced in evidence. Here there was none, unless on a theory which we will consider when the other points pressed upon our attention by appellant are determined.
Fault is found with this instruction given by the court:
“You are further instructed that the question of plaintiff’s earning capacity is a fact to be determined like any other fact in this case, from the evidence which has been introduced in the case. In order to support a finding by you as to earning capacity, as well as any other fact or issue in the case, there must have been some evidence introduced upon which to base such finding. Where a fact is in issue in a case and no evidence is introduced in relation thereto, or sufficient evidence is not introduced in the case to enable the jury to arrive at a finding of fact in relation thereto, no finding can properly be made by the jury and in such a situation a proper answer to a special question calling for such finding would be ‘We do not know.’ ”
A just criticism of this instruction would be that the trial court should have told the jury that where an asserted fact is in issue, and no evidence — or no evidence worthy of credence — is introduced in support of it the proper answer is an unequivocal and positive “No,” not an evasive and indeterminate response such as “We do not know.” However, the burden was on plaintiff to prove all the material facts upon which he relied for judgment, and the rule is that a jury’s answers, “We do not know,” have the effect of findings against the party having the burden of proof, inasmuch as it warrants an inference that there was a lack of preponderating evidence in his favor. (Sheerer v. Kanavel, 106 Kan. 220, 187 Pac. 658; Toelle v. Sells-Floto Shows Co., 111 Kan. 562, 569, 207 Pac. 849; Priest v. Life Insurance Co., 116 Kan. 421, 227 Pac. 538; id., 117 Kan. 1, 2, 230 Pac. 529.) The fair interpretation of the trial court’s observation, “I don’t blame them for answering it as they did,” is that the court itself could discern no evidence in the record on which precise and positive answers favorable to plaintiff could have been given. The criticized instruction was not prejudicial to plaintiff.
Plaintiff also assigns error in overruling his motion to set aside certain of the special findings. This court perceives no basis upon which that ruling could be disturbed.
Another error is predicated upon the fact that a physician was permitted to testify that he had made an examination of the plaintiff at the direction of the trial court itself, and because defendant’s counsel argued that fact to the jury as one of special significance tending “to give his evidence greater weight than would otherwise be accredited, and to minimize the weight of other doctors and evidence in the case.” There is a provision of statute which indicates a legislative belief that expert witnesses called by the respective litigants may possibly be somewhat biased in their views and that the views of a neutral physician called by the court and under no obligation to either litigant might be helpful in ascertaining the truth touching actual or simulated injuries and incapacity in industrial accident cases. (R. S. 44-516.) The relative amount of credence to be attached to the testimony of any expert witness, whether avowedly partisan, presumably neutral, or manifestly disinterested— like the testimony of any other witness — is a fair subject for debate in addressing the jury. This assignment of error lacks merit.
We come then to a matter which has not been specifically urged on this court’s attention, but one which obviously intrudes in considering the propriety of reducing the verdict from $1,700 to $30. We have said there is no evidence to sustain a verdict for $1,700, and that its reduction was proper. But there were certain special findings of the jury entitled to effective significance in determining the amount of that reduction which should not be overlooked. The jury found that plaintiff was partially incapacitated, but for want of evidence they could not say how long that partial incapacity would continue. They did find it would not be permanent. They did find it still existed at the time of the trial. These findings, together with certain facts disclosed by the record, supply sufficient known factors upon which some award could and should have been allowed to plaintiff. He was injured on March 20, 1924. He was totally incapacitated for 26 weeks. Leaving out of the calculation the first week following the accident, 26 weeks would carry the time down to September 25,1924, when plaintiff’s total disability ended. The jury found that he was still partially incapacitated at the time of the trial, April 24,1925, and that such partial incapacity would continue until some undetermined future time. It thus appears that regardless of the indeterminable future time the partial and temporary incapacity would continue, it did endure from September 25, 1924, until April- 24, 1925, and plaintiff was entitled to compensation therefor. And since there was a want of testimony on which his compensation for such partial incapacity could be otherwise computed, plaintiff was entitled t-o the minimum statutory allowance, which is $6 per week. (R. S. 44-510, 44-511; Stefan v. Elevator Co., 106 Kan. 369, 373, 187 Pac. 861; Anderson v. Oil & Refining Co., 111 Kan. 314, 206 Pac. 900.)
In Emry v. Cripes, 110 Kan. 693, 205 Pac. 598, it was held:
“Under the workmen’s compensation act, where a workman suffers a permanent partial disability, the compensation for which is not definitely prescribed by the statutory schedule for specific injuries, the rule for determining the compensation to be awarded is to make a computation of sixty per cent of the difference in his weekly earning capacity before and after his injury, for eight years; and if this computation results in any sum less than minimum of six dollars per week for eight years, the disabled workman shall be awarded such minimum.” (Syl. ¶ 2.)
Between the time when total disability ceased, September 25, 1924, and April 24,1925, the record discloses an ascertained interval of 28 weeks during which partial incapacity continued. The minimum allowance of $6 per week for 28 weeks is $168. It thus becomes clearly demonstrable from the record that the judgment should be increased by that amount. (R. S. 60-3317; Mitchell v. Derby Oil Co., 117 Kan. 520, 530, and citations, 232 Pac. 224.)
The cause will be remanded to the district court with instructions to enter judgment for plaintiff for $198, and thus modified it will be affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from an order overruling its demurrer to the petition of the plaintiff.
The plaintiff sued to recover damages for breach of a written contract, which read as follows:
“Whereas, It is important that The Federal Reserve Life Insurance Company shall enter other states for the purpose’of writing business therein; and
“Whereas, J. S. Coe is willing to undertake the work of procuring business and the renewal thereof for the company in the state of Oklahoma; and
“Whereas, Said Coe agrees to use his best endeavors in the work of building an organization in Oklahoma.
“Now, therefore, this contract made in duplicate this 19th day of December, 1922, by and between The Federal Reserve Life Insurance Company (a corporation duly organized under the laws of the state of Kansas, with its principal office in Kansas City, county of Wyandotte, state of Kansas), party of the first part, and J. S. Coe, of Topeka, county of Shawnee, state of Kansas, party of the second part, witnesseth:
“1. Appointment.
“The first party hereby appoints the second party its general agent in and for the state of Oklahoma.
“2. Authority.
“Second party shall have authority (a) to procure applications for policies (defined as writing business); (b) to collect first year’s premiums; (c) to collect renewal premiums; (d) to appoint agents and others necessary in the carrying out of the second party’s work and his plan of organization for the procurement of said business and the renewal thereof; (e) to have absolute control of said organization; (/) to have the right to open offices anywhere he may see fit in any of the said states; (g) to do such advertising or circularization as he may wish to do at his own expense.
“3. Expenses op First Party.
“First party shall pay death claims and all expenses in connection with the company as ordinarily paid by life insurance companies, including medical examination and inspection fees, taxes, all licenses and fees; provided, however, that said Coe agrees to advance the necessary amounts to cover licenses and fees and/or taxes in the states herein named, with the understanding, however, that if and when said Coe shall have procured two hundred thousand dollars of paid for business in the states herein named, then said amounts which shall have been advanced by said Coe for licenses and fees and/or taxes in that state shall be refunded to said Coe; and this shall be the method and arrangement for all the states herein named, that is, opening and entering said state.
“4. Expenses op Second Party.
“Second party shall pay commissions and other compensation to all sub-agents or others employed by second party in the procurement of business, or renewal thereof, in any of the states herein named.
“5. Second Party May Make Contracts.
“Second party may make contracts with such subagents or others in the procurement of business, or renewal thereof, in any of the states herein named, on whatever contractual basis he may be able to make, and whatever difference, or differences, if any, between this contract and the contract thus made by second party with such subagents, or others, as aforesaid, shall go to second party and belong to him.
“6. Assistants.
“Second party shall have the power to appoint and employ such assistants and others as second party may see fit so to do, and second party shall also have power to give said assistants and others such appropriate titles as he may select; and second party may delegate any of the powers herein conferred on second party and may empower said assistants and others to act for him.
“7. Compensation.
“Second party’s compensation shall be commissions on first-year premiums, and renewal commissions on nine subsequent premiums paid on all business written in the state herein named as follows, to wit:
Kind of policy. First-year commission.
Term policies ......... 95%
Twenty-payment life policies ......................... 95%
Ten-payment life policies ............................. 85%
Ordinary life policy ....._............................. 95%
Fifteen-payment life policies.......................... 90%
Twenty-year endowment policies...................... 75%
Fifteen-year endowment policies ...................... 70%
Ten-year endowment policies ......................... 65%
“8. Renewals.
“In addition to the commissions named in the foregoing schedule, second party shall receive nine renewals on the subsequent premiums on all policies written under this contract as follows, to wit: four renewal commissions of fifteen per cent each, and thereafter five renewal commissions of ten per cent each of the premiums paid on all policies written during the continuance of this contract.
“9. Duration of Contract.
“This contract shall become effective today and shall continue for a period of fifteen years from this date.
“10. Assignment.
“This contract and all compensation herein named may be assigned by second party to an associate hereinafter to be named by second party to first party.
“The above was substituted for section No. 10 and written by the company’s president in my own handwriting. — (Signed) Walter L. Payne, Pres.
“11. Changed or Converted Policies.
“If and when any term, life and / or endowment, policy may be changed from a lower to a higher premium, second party shall receive commissions, as herein provided, on the difference between the lower and higher premiums.
“12. Shall Not Affect Any Other Contract.
“The making of this contract shall not affect, in any wise, any contract heretofore made by and between said company and the second party to this contract.
“13. Opening State.
“Second party shall have the right to open or enter said state whenever second party finds it practicable to begin operation in said state; provided, however, if second party shall not have begun operation in the state herein named, within two years from the date of this contract, first party shall have the right to withdraw state herein named from this contract.
“14. Acceptance.
“Second party is willing and agrees to undertake said work of building an organization in the state herein named, in accordance with the terms of this contract, and accordingly hereby accepts this contract.”
The petition alleged the execution of the contract, and the willingness, readiness, and ability of the plaintiff to perform his obligations under it; which performance was prevented by the defendant. The breach of contract alleged was that the defendant after repeated requests and demands therefor failed to furnish the information, material, and supplies necessary to be furnished to the plaintiff in order to enable him to perform his obligations under the contract. The petition proper is set out in nine pages of printed matter in the abstract, and with the exhibits fills twenty-nine pages.
1. One part of the demurrer was on the ground that the petition did not state facts sufficient to constitute a cause of action. ■ To support this ground of the demurrer, the defendant argues that the contract was void because by it the defendant turned over to the plaintiff the entire management of its business in the state of Oklahoma, which at that time was one-half of the territory in which the defendant was doing business. This argument is based on the length of time the contract was to run, fifteen years, on the authority given to the plaintiff in employing subagents for the purpose of procuring insurance and on the fact that the contract provided that it and all compensation under it could be assigned by the plaintiff to any associate whom he might thereafter name. The court cannot agree with the defendant in its construction of the contract. It did name the plaintiff as the agent of the defendant, and did give to him power to appoint subagents, and did give him authority to assign his rights under the contract, but it did not authorize him, nor anyone appointed by him, to do anything except to procure applications for policies, to collect first-year premiums, and to collect renewal premiums as set out in paragraph No. 2 of the contract. This did not take from the defendant the management or control of its business in Oklahoma. The petition alleged a breach of the contract and stated a cause of action.
2. The demurrer sets out ten grounds, each of nine of which is directed to a specific part of the petition on the ground that the part attacked did not state facts sufficient to constitute a cause of action against the defendant. If may be said that none of those parts of the petition taken by itself constituted a cause of action against the defendant. The petition did not attempt to state a cause of action on any one of those parts. They were a part of the petition as a whole, which alleged but one cause of action and did not attempt to plead more than one.
The statute, section 60-705 of the Revised Statutes, reads:
“The defendant may demur to the petition only when it appears on its face . . . that the petition does not state facts sufficient to constitute a cause of action.”
The statute does not provide for a demurrer to a part of a petition which states but one cause of action. The right to demur is restricted to the whole of a cause of action.
In 31 Cyc. 326, the writer says:
“Under the common law system of pleading, a demurrer will lie only to the whole of a pleading. But under the codes and practice acts, the general rule is that it can be directed to a particular count or defense. However, a demurrer must go to the whole of a count or defense, where the same is single and entire, and a demurrer to only a part thereof cannot be considered.”
To the same effect is 6 Standard Proc. 857-859.
It is not a ground of demurrer that a part of a petition does not state a cause of action where that part is set out merely as a part of the cause of action alleged in the petition as a whole. The part attacked may be subject to a motion to strike out or to make more definite and certain, but it is not demurrable because it is subject to those motions.
The demurrer was properly overruled, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
.This was an actio'n to subject a half section of Leavenworth county land to the payment of claims of Missouri judgment creditors of the estate of the late John T. Loveland, of Pettis county, Missouri, who died in 1919 seized of real and personal property in both Missouri and Kansas, including the Kansas land involved in this action.
Administration of Loveland’s estate was timely begun in Missouri and ancillary administration was also undertaken in Kansas. The later administration was seasonably wound up and the ancillary estate closed, and the Kansas administrator discharged before the claims of certain creditors presented in Missouri against Love-land’s estate had been adjudicated.
Plaintiffs are the Missouri administrator and these Missouri judgment creditors.
Defendants are the former ancillary administrator, certain legatees and devisees under Loveland’s will, and other claimants to and parties interested in the Kansas land sought to be subjected to the payment of plaintiffs’ claims.
The principal defense was that following the death of Loveland, testate, his will was probated in Missouri and his testamentary executor qualified, and later an administrator with the will annexed was appointed to succeed the executor, deceased; that ancillary administration was timely instituted in LeavenWorth county, Kansas, and Charles W. Hemphill was appointed ancillary administrator with the will annexed; that Hemphill qualified and served, and paid all bills exhibited and allowed by the Leavenworth county probate court, and that he closed and settled the ancillary administration and estate in some two years and two months, and by order of court remitted the net balance of funds in his hands, $370, to the Missouri executor, and received his final discharge, all in conformity with the law of this state.
Following the final settlement of the Kansas estate and the discharge of the ancillary administrator, Nellie Elliott, née Schenck, devisee of the Kansas land, conveyed it by warranty deed subject to existing incumbrances to John E. Fox. At Loveland’s death the New England Securities Company held a first mortgage on the Kansas real property for $14,500 with interest due thereon, $797.50; also a second mortgage for a balance of $507.50; and taxes due on the land and unpaid, $196, aggregating $16,001 in incumbrances. Fox, the grantee, executed a mortgage for $16,000 to the New England Securities Company to pay these liens, and thereafter Fox borrowed $20,000 from the Joint Stock Land Bank of Kansas City with which the $16,000 indebtedness due the New England Securities Company was extinguished. These and related facts set out in the pleadings and exhibits occupy some sixty-five printed pages of the abstract, but with the foregoing statement the legal problems of present importance may be sufficiently developed by the following ■chronological summary of facts and events:
December 2, 1919, John T. Loveland, of Pettis county, Missouri1, died testate, owning real and personal property in Missouri. His Missouri estate eventually proved to be insolvent. He also owned real and personal property in Kansas, the Kansas real estate being heavily mortgaged to the New England Securities Company and incumbered with unpaid taxes.
December 26, 1919, Loveland’s will was admitted to probate in Pettis county, Missouri. The will devised small bequests to relatives, the residuary estate to Nellie Schenck, and named John A. Collins, of Pettis county, Missouri, as executor. Collins qualified and served until his death on February 14, 1924, when he was succeeded as administrator with the will annexed by G. C. Loveland, who qualified and has since served.
January 6, 1920, ancillary administration was begun in Kansas; Charles W. Hemphill was appointed by the probate court of Leavenworth county as ancillary administrator with the will annexed. Hemphill qualified and served; he paid all demands presented against the estate, including inheritance tax and costs of administration, and transmitted the net balance of funds in his hands, $370, to the Missouri executor as by the probate court directed.
March 14, 1922, Hemphill received his final discharge as ancillary administrator.
May 1, 1922, Nellie Elliott, née Schenck, by warranty deed conveyed the Kansas land to John E. Fox subject to some $16,000 of incumbrances, mostly due the New England Securities Company.
May 19, 1922, Fox executed a mortgage of $16,000 to the New England Securities Company to pay off the outstanding incumbrances on the property.
October 1, 1922, Fox borrowed $20,000 from the Joint Stock Land Bank of Kansas City, giving it a mortgage on the property to secure the loan, and $16,000 of this sum was used to extinguish the prior lien of the New England Securities Company.
May 8, 1924, the Missouri administrator and certain Missouri creditors holding claims allowted by the Missouri probate court and upheld by Missouri courts of competent jurisdiction filed in the probate court of Leavenworth county, Kansas, duly authenticated copies of those claims and requested their allowance and an order of court for the sale of the Kansas property to satisfy them. This the Leavenworth probate court refused to do on the ground that the-estate had been finally closed and that it was without jurisdiction. This belated proceeding before the probate court was dropped, and—
November 4> 1924, this action was begun. By it the Missouri administrator and the creditors sought to invoke the equity powers-of a court of general jurisdiction to have the Kansas property sub jected to the payment of the claims of the Missouri creditors. Plaintiffs’ petition, with its amendments and exhibits, narrated part of the foregoing facts, and the answers and exhibits of defendants supplied the other material facts.
Plaintiffs’ petition pleaded other matters of fraud and collusion (of which there was no proof and therefore need not be stated) and further alleged:
“Plaintiffs further allege that they and each of them did on or about the 8th day of May, 1924, present and file in the probate court of Leavenworth county, Kansas, a duly authenticated copy of their claims as allowed by the probate court of Pettis county, Missouri, in the form and manner as provided by the laws of Kansas, and have requested the probate court of Leavenworth county, Kansas, to allow the same, and to order the real estate mentioned therein and which belongs to said estate sold; and the proceeds derived from any such sale, applied to the payment of thefr claims, which the probate court of Leavenworth county, Kansas, refuses to do for the reason and on the grounds that said estate has been finally closed in said court, and that it has no further jurisdiction in the premises.”
The petition concluded with a prayer for equitable relief, and suggesting in detail what plaintiffs conceived that relief should be.
The defendant, Charles W. Hemphill, answered, reciting the facts of his ancillary administration, begun on January 5, 1920, his appointment and qualification, his final settlement and discharge March 14, 1922.
Defendant John E. Fox answered, reciting the facts of the Kansas ancillary administration, setting up a copy of the order of final settlement, the discharge of the ancillary administrator by the Leavenworth county probate court, March 14,1922. And—
“For further answer . . . this defendant avers that the proceedings in the probate court of Leavenworth county, Kansas, were regular and legal; that no claim mentioned or set up by the plaintiffs in their petition herein was exhibited to said Hemphill as administrator, or otherwise, and that no such claim was proved up or attempted to be proved up in the probate court of Leavenworth county, Kansas, within two years from the notice of appointment of said Hemphill as such administrator, or at all, and that each and all of the pretended claims of the plaintiffs herein are and were on the date of the filing of plaintiffs’ petition herein barred by the statute of nonclaim, then "in force, same being section 22-702, Revised Statutes of Kansas, 1923.”
Defendant Fox further answered, alleging that in reliance on the records and proceedings in the probate court of Leavenworth county, and without knowledge of plaintiffs’ claims, he purchased the Kansas land from Nellie Elliott, me Schenck, Loveland’s devisee, and his subsequent entrance and occupancy of the premises.
The Kansas City Joint Stock Land Bank answered, reciting the facts concerning Loveland’s death, the contents of his will, the Missouri administration, the Kansas ancillary administration, and setting up- in detail the facts concerning the encumbrances on the property at Loveland’s death, the disposition and eventual ex-tinguishment of those encumbrances by its loan of $20,000 to Fox, and the mortgage it held on the property as security therefor. The bank claimed the right of an innocent encumbrancer and also by subrogation to the rights of those who had held liens in the property at Loveland’s death and which had been satisfied out of its $20,000 loan.
On this joinder of issues the cause was tried. The oral testimony for plaintiffs developed nothing of controlling significance, nothing to support plaintiff’s allegations of fraud and collusion touching the final settlement of the Kansas estate and the discharge of the ancillary administrator, and nothing to show notice or knowledge on the part of Fox or the Joint Stock Land Bank touching the status of the Missouri .estate. The oral testimony did show that the devisee, Nellie Elliott, me Schenck, was a litigant and represented by counsel in the Missouri litigation.
Defendants’ demurrer to plaintiffs’ evidence was overruled, and defendant Fox testified in detail touching his acquisition of the land for $32,000, of which he paid $5,000 in cash, and gave the devisee a second mortgage for the remainder, less the encumbrances which were disposed of as already stated, and that he had made the later payments of $500 and $1,500 on the second mortgage. That the total encumbrances including taxes, which he satisfied, aggregated $16,549.10.
The trial court found generally for defendants and judgment was rendered accordingly.
Plaintiffs appeal.
They first argue that they did not have to come into the Kansas jurisdiction within the time the ancillary administration “was open and litigate their claims.” In this they are partly correct. They did not have to litigate, or rather relitigate, their claims in Kansas after having had them duly probated and allowed in Missouri, and certainly not after such claims were vindicated by the judgments in Missouri courts of competent jurisdiction. But the point that those claims did not have to be relitigated in Kansas does not settle the question whether such claims so probated, allowed, and adjudicated in Missouri should or should not have been presented to the Kansas ancillary administrator for payment. Our pertinent statutes read:
“R. S. 22-301. . . . and when any person shall die intestate in any other state or country, leaving any estate to be administered in this state, administration thereof shall be granted by the probate court of any county in which there is any estate to be administered. . . .
“R. S. 22-701. All demands against the estate of any deceased person shall be divided into the following classes: . . . Fifth, all demands without- re-
gard to quality, which shall be legally exhibited, against the estate within one year after the granting of the first letters on the estate. Sixth, all demands thus exhibited after the end of one year, and within two years after letters granted.
“R. S. 22-702. All demands not thus exhibited within two years shall be forever barred, saving to infants, persons of unsound mind, imprisoned or absent from the United States, one year after the removal of their disabilities. ...
“R. S. 22-708. The probate court shall have jurisdiction to hear and "determine all demands against any estate; . . .
“R. S. 22-727. No executor or administrator, after having given notice of his appointment as provided in this act, shall be held to answer to the suit of any creditor of the deceased unless it be commenced within two years from the time of his giving bond.
“R. S. 22-729. Any creditor of the deceased whose right of action shall not accrue within the .said two years after the date of the administration bond, may present his claim to the court from which the letters issued at any time before the estate is fully administered; ...
“R. S. 22-907. That executors and administrators of estates of deceased persons shall make final settlement of the same before the probate court within thirty days after the expiration of two years after the date of their legal qualification as such: Provided, That upon proper showing, the court may grant such extension of time for making such final settlement as may be deemed expedient or necessary. . . .
“22-915. When the account is settled in the absence of any person adversely interested, and without actual notice to him, the account may be opened on his filing exceptions to the account at any time within six months thereafter; . . .
“22-930. When administration shall be granted in this state on the estate of any person who at the time of his decease was an inhabitant of any other state or country, such estate shall be administered and distributed according to the laws of this state; and the balance in the hands of the administrator on final settlement, to which the foreign executor or administrator of said deceased may be entitled, shall be paid over to such foreign executor or administrator upon the order of the court.
“R. S. 22-1101. Appeals shall be allowed from the decisions of the probate court, to the district court, in the following cases:
“First. On all demands against an estate exceeding twenty dollars.
“Second. On all settlements of executors and administrators.
“Sixth. On all orders for the sale of real estate.
“And in all other cases where there shall be a final decision of any matter arising under the .jurisdiction of the probate court.
“R. S. 22-1102. All appeals shall be taken within thirty days after the making of such decision.”
Other related and significant provisions of statute are R. S. 22-329, 22-501, 22-601, 22-706, 22-712, 22-801, 22-904, 22-906, 22-915, but it is unnecessary to reproduce them here.
A careful perusal of these provisions of statute will show that the rights of plaintiffs were adequately susceptible of protection under the Kansas administration. The Missouri administrator was advised of the progress of the Kansas administration, and knew, when he received the net balance of funds, that the Kansas administration was being wound up. Plaintiffs were bound by the notice of appointment of the Kansas administrator. That was what the notice was for. (R. S.-22-329.) Plaintiffs were barred in two years as all other creditors and claimants (other than infants, lunatics, prisoners, and persons abroad) because the statute so declares. (R. S. 22-702.) Notwithstanding the prolonged litigation over plaintiff’s claims in Missouri, there was nothing to prevent them from asking the probate court of Leavenworth county to have the Kansas estate kept open and final settlement deferred. For such good cause shown, the probate court could and naturally would have extended the statutory time for winding up the Kansas estate. (R. S. 22-907.) It is a very simple matter to stop the running of the statute of limitations in the matter of presenting claims against estates if a claimant manifests the slightest diligence regarding his rights. (Clifton v. Meuser, 79 Kan. 655, 100 Pac. 645.)
It will thus be seen that statutory means is provided for the protection of every just right of plaintiffs, and the record is clear that the Kansas estate was administered and closed in seasonable and methodical compliance with law. Unless this court were prepared to rule that our own probate court’s administration is to be held for naught, that our statutes which bar claimants who do not present their accrued claims within two years do not mean what they say, that rights of action not accrued need not be presented “at any time before the estate is fully administered” (R. S. 22-729), and that the other pertinent provisions of the law of decedents’ estates may be completely ignored, the Kansas administration of Loveland’s estate must be upheld; and the pertinent statutes cited aboye must be interpreted, applied, and given effect according to their intendment. Not only does our law give adequate consideration to the rights of claimants against estates of decedents, resident or nonresident (R. S. 22-930), by due administration thereof through our probate courts, but it also makes provision to cover the situation where no Kansas administration is undertaken. Under such circumstances, the statute' authorizes foreign executors and administrators by a very simple procedure in a probate court of competent jurisdiction to subject Kansas real estate of a nonresident decedent to the payment of debts or to dispose of it according to the terms of the decedent’s will. (R. S. 22-832; Thomas v. Williams, 80 Kan. 632, 103 Pac. 772.)
In the absence of a Kansas administration of Loveland’s estate,, of course defendant Fox would have bought the land from the devisee subject to the possibility of its being needed to satisfy debts of Loveland. (McLean v. Webster, 45 Kan. 644, 26 Pac. 10; Thomas v. Williams, supra; Allen v. Wilhoit, ante, p. 387.) That is, the Kansas record of title would have been incomplete, and Fox would thereby have been put on his guard as to the possibilities and implications thereby suggested. But with a Kansas title record complete and fair on its face, that title coming down from some undisputed source to John T. Loveland, and showing the death of Love-land and the probate of his will in Leavenworth county, showing the devise of the property to the testator’s niece, the appointment of a Leavenworth administrator, the record and final settlement and discharge of that administrator, all correctly and regularly done, Fox has a perfect right to rely on that record and on the assurance of the Kansas statutes under which that record was created, and to buy the property from the devisee of Loveland’s will. And by that purchase Fox got good title against everybody of whose claims he knew nothing and concerning which the record not only gave no hint but affirmatively tended to assure him that his grantor’s title and ownership were indefeasible.
The early case of Collamore v. Wilder, 19 Kan. 67, was analogous in some important particulars. It was there held:
“Where A. exhibits his demand against the estate of a decedent, by causing notice and statement of the amount due him to be served upon the administrator, and thereafter takes no further steps to have his demand allowed or established during the administration of the estate, and such administration continues over four years from the date of the letters of administration granted in the case; and said administrator makes a final settlement of such estate, which final settlement is approved by the probate court, and thereon the said administrator is finally discharged, and no claim is made of error, fraud, or concealment as to said final settlement, or the discharge of the administrator, A. cannot maintain his action in the district court against the heirs of the deceased, to whom lands have descended from him, to have his demand adjusted and allowed, and said lands sold to satisfy the same.” (Syl. ¶ 1.) See, also, Land Co. v. Perry, 23 Kan. 188; Shoemaker v. Brown, 10 Kan. 383; Anderson v. Beebe, 22 Kan. 771; Smith v. Bank, 24 Kan. 530; Klamp v. Winter, 23 Kan. 705; Freeman v. Waynant, 25 Kan. 280; Markson v. Kathman, 29 Kan. 722; Scroogs v. Tutt, 23 Kan. 181.
In Scroggs v. Tutt, 23 Kan. 181, it was held:
“Where a party fails to exhibit his demand against an estate for over three years [two years when this estate was being administered, (R. S. 22-702), now one year, (Laws 1925, ch. 209)] after letters of administration have been granted (and he does not come within any of the exceptions), his claim is barred by § 81 of the executors’ and administrators’ act; . . .” (Syl. If 5.)
In Kothman v. Markson, 34 Kan. 542, 9 Pac. 218, it was held:
“While the district court has jurisdiction over certain matters relating to the estates of deceased persons, it is an equitable jurisdiction, and in its exercise the court will be governed by the rules of equity, and the plaintiff, therefore, cannot successfully invoke the jurisdiction of the district court to enforce the payment of a claim against the estate of an intestate, where the statute has provided that the relief sought may be obtained in an ordinary legal proceeding in the probate court, and no special circumstances requiring the aid of equity are disclosed.” (Syl. ¶[ 3.) See, also, Kothman v. Skaggs, 29 Kan. 5; Myers v. Kothman, 29 Kan. 19; Gafford v. Dickinson, 37 Kan. 290, 291.
In the pertinent and instructive case of McDaniel v. Putnam, 100 Kan. 550,164 Pac. 1167, it was said:
“Except by some provision in a will, requiring the keeping open of an estate longer than two years, the statute controls. A person has no power by an oral agreement with his creditor to establish a different rule as to the time for the presentation of a claim against his estate than the rule declared by the statute of ‘nonclaim,’ barring all demands against estates of deceased persons which are not presented within two years.” (Syl. fl 2. See, also, Milbourne v. Kelley, 93 Kan. 753, 145 Pac. 816; Clark v. Eaton, 109 Kan. 574, and citations, 201 Pac. 71.)
In view of the foregoing, it must be held that the judgment of the trial court was correct; and it thus becomes unnecessary to con sider the rights of parties who cleared the Kansas property from the burden of incumbrances attaching to it at Loveland’s death, but the student of this subject will discover that our law of subrogation is much more equitable and just than appellants conceive it to be. (Johnson v. Moore, 33 Kan. 90, 5 Pac. 406; New v. Smith, 94 Kan. 6, 145 Pac. 880; Breyfogle v. Jackson, 113 Kan. 373, 214 Pac. 779, and citations; Crane v. Daniel, 121 Kan. 3, and citations, 245 Pac. 1017.)
The other matters suggested in appellants’ brief have been carefully noted, but they do not warrant further discussion. The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action brought by the Kansas Amusement Company against the Maryland Casualty Company upon a policy insuring against burglary and larceny. The case was disposed of upon a demurrer to the petition in which the demurrer was overruled and of this ruling defendant complains.
It was alleged that the plaintiff was operating the Novelty Theater where performances were given nightly. That the money derived from the sale of tickets was immediately transferred by mes senger from the theater to the office of the plaintiff, where there was a burglar-proof safe in which the money from the receipts was kept, and that the only receipts from the performances were an afternoon matinée and the nightly performances. . That the agent of the defendant solicited the plaintiff for permission to write burglary and robbery insurance to protect funds while inside the theater and also while being transferred from the theater to the office of the plaintiff. That the office was in the same block as the theater building and of these facts the agent was -fully informed and the .agent assured the plaintiff that the policy would cover any loss by robbery while transferring funds from the theater to its place of safekeeping, and also while the funds were inside the theater. That it was distinctly and fully understood between the agent of the corporation and the plaintiff that the insurance would be so written and the policy delivered later to the plaintiff. That a policy was delivered, at which time the agent assured the plaintiff that the policy was written as agreed upon, and the insured, without reading or examining the policy, put it away believing that it had been written in compliance with the agreement. That either by accident, mistake or gross carelessness, the agent failed to attach the proper ridér and did not have a provision of the agreement to protect the insured by robbery of messenger outside the building. The policy only provided for all loss occurring at any time during the hours beginning 7 a. m. and ending at 7 p. m. The robbery occurred outside of the theater while the plaintiff was transferring the receipts from the-sale of tickets from a night performance about 9:30 p. m. by a messenger, who was compelled by a drawn revolver to surrender the funds amounting to $472.59. It was further alleged that it was distinctly and fully understood by both parties that the policy would be written in accordance with the agreement as to the insurance. At the end of one year the policy was renewed. It was first issued in the name of L. M. and Roy Crawford, but by an agreement which was indorsed on the policy the name of the insured was changed to read “Kansas Amusement Company.” There was a clause in the policy that any attachment to it extending or limiting the insurance should be subject to all stipulations and provisions of the attachment and to those contained in the policy not conflicting with the terms of the attachment which should be binding alike upon the insurer and the insured. It was alleged that when defendant denied liability on the policy the plaintiff notified defendant that if there was an additional premium by reason of the insurance agreed upon, the plaintiff was ready and willing to pay the same and there tendered payment into court stating that it would continue to keep the tender good. The refusal of defendant to pay was based upon the ground that the policy as 'written only made it liable for loss by robbery or burglary between 7 a. m. and 7 p. m. and did not cover a loss which occurred outside the theater at about 9:30 p. m. The plaintiff asks for the reformation of the policy and a recovery of the loss sustained amounting to $472.50. The question presented upon this appeal is whether the petition stated a cause of action. The decision of the trial court overruling defendant’s demurrer to the petition must be sustained. According to the averments of the petition there was a definite agreement between the insurer and the insured that the insurance applied for and the policy to be issued should cover the losses occurring by burglary and robbery in the theater and also while transmitting the receipts from the sale of tickets at each nightly performance to a place of safe-keeping, which it appears was only half a block away. It has been determined that it is the duty of an insurer to write a policy in accordance with the application or agreement for insurance, that an insured who receives a policy may assume that the insurer has discharged its duty and written the policy on the basis of the application or agreement, and he is not obliged to read the policy in order to see that it is correctly written, and that if such application is written and delivered and the premium is paid by the applicant and retained by the company, a binding contract of insurance is effected on the basis of the application. These points were considered and definitely determined in Insurance Co. v. Darrin, 80 Kan. 578, 103 Pac. 87, and appears to be decisive of the poiiits raised in the present case. See, also, Pfiester v. Insurance Co., 85 Kan. 97, 116 Pac. 245, and cases therein cited. A policy written by an insurer different from the application or agreement, whether made through mistake or design, may be reformed. The petition does not charge that the policy was wrongly written by design or fraud, but accounts for the departure from the real contract of insurance as a result of oversight, accident or mistake. Good grounds for a reformation were alleged. It appears that there was a change of the name of the insured from L. M. and Roy Crawford to Kansas Amusement Company,.and that the business was continued thereafter by them in the latter name. This change did not affect the obligations of the contract. It was agreed to by the parties and indorsed upon the policy. There was no modification of the conditions of the insurance contract, nor of the rights of the insured and the insurer.
The order of the court overruling defendant’s demurrer to plaintiff’s petition is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
This is an action of ejectment. The only question involved is whether or not the holder of the tax deed herein designated as the Hinchman deed has lost, by reason of the two-year statute of limitations, the right to a lien on the land for the taxes represented by such deed.
The plaintiff, Gibson, owns the original title to the land, but has never been in possession. On November 20, 1902, he brought this action. The defendant Bragg has been in possession since June 1, 1898, claiming ownership under a tax deed dated and recorded January 8, 1898. Prior to the possession of Bragg the land was vacant and unoccupied. The possession of Bragg has been by tenants, agents and employees only, and he has been personally a non-resident of, and absent from, the state at all times since the date of his deed.
After this action was commenced, but before time to answer, Bragg obtained the Hinchman deed and set it up with his own in his answer. The Hinchman deed was executed and recorded March 13, 1893. Nothing was done by the holder thereof to enforce it or to obtain possession of the land under it until the answer of Bragg was filed as aforesaid.
Upon the trial the court held both deeds void, but the defendant was given a tax lien under each of them. The plaintiff concedes the lien as to the Bragg deed, but claims that, under the case of Corbin v. Bronson, 28 Kan. 532, the Hinchman deed is void for all purposes. It was held in that case that a tax-deed holder out of possession who for two years, during which time the owner is in possession, fails to institute proceedings to recover the land loses all rights under his deed, and cannot recover taxes thereunder. But the facts of this case are essentially different. Here the owner has never been in possession. As between the plaintiff and the holder of the Hinchman deed the land has been vacant and unoccupied.
The two-year statute of limitations does not begin to run against a tax-deed holder not in possession and in favor of a non-resident owner who is absent from the state , nor while the land is vacant and unoccupied. (Case v. Frazier, 30 Kan. 343, 2 Pac. 519; Coale v. Campbell, 58 Kan. 480, 49 Pac. 604.) Possession by tenants, agents or employees only will not start the statute in favor of a non-resident owner who is absent from the state. (Ard v. Wilson, 60 Kan. 857, 56 Pac. 80, affirming 8 Kan. App. 471, 54 Pac. 511.)
It follows that the statute has never started to run against the Hinchman deed in favor of any one. As to the plaintiff, the land has always been vacant and unoccupied. As to Bragg, it has been practically the same. By reason of his being a non-resident of and personally absent from the state, no judgment could have been obtained against him that would have been conclusive. The statute of limitations does not require a person to institute proceedings to enforce a right within a time limited when such proceeding will not conclusively determine such right as to each party. It would have been a vain and useless proceeding upon the part of the holder of the Hinchman deed to have commenced an action thereon against any one.
The tenants, agents and employees of Bragg claimed no independent right to the land, and no judgment could have been obtained against them that would have been binding upon Bragg. Even if Bragg, in an action by the holder of the Hinchman deed, had submitted to the jurisdiction of the court, the judgment in such a case would not have been binding against the plaintiff, who was not a party; and, not being binding against him, it could not be used as conclusive in his favor.
In any view we think the tax lien under this deed was properly sustained. The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
John J. Mickley agreed in writing with the J. I. Case Thrashing-machine Company to purchase a thrashing outfit from it, the contract containing this provision: “In case party [Mickley] goes to Oklahoma and buys land [he] has the privilege of countermanding this order.” The company shipped the machinery, and upon Mickley’s refusal to accept it sued him for damages, alleging a breach of the contract. He defended upon the ground that he had countermanded the order, and was justified in doing so by the fact that he had gone to Oklahoma and bought land there. Upon a trial the court directed a verdict for the defendant, and gave judgment thereon, from which the plaintiff now prosecutes error.
There was no substantial controversy over the facts. It was admitted that Mickley had notified the company that he had elected to countermand the order, and that before doing so he had visited Oklahoma and there purchased real estate, described as block 8 in Kingfisher, for $200. The.question involved is whether in doing this the defendant had gone to Oklahoma and bought land, within the meaning of the contract.
The plaintiff claims that upon the face of the contract the condition that the defendant should go to Oklahoma and buy land could only be met by his permanently removing to Oklahoma and buying a farm there. In support of this claim it is argued that the word “land,” when employed, as it was in this instance, without qualifying words, means at least presumptively agricultural land, as distinguished from town lots or blocks. To this contention we cannot agree. The use of the word “land” as a generic term covering real property of any character is sanctioned by custom and by authority. In its general sense it is defined by Webster as “any portion, large or small, of the surface of the earth, considered by itself, or as belonging to an individual or a people, as a country, estate, farm, or tract.” As a law term the same work thus defines it: “Any ground, soil or earth whatsoever, as meadows, pastures, woods, etc., and everything annexed to it, whether by nature, as trees, water, etc., or by the hand of man, as buildings, fences, etc.; real estate.” It is used throughout the Kansas statutes as a synonym of “real estate” and “real property.” (Gen. Stat. 1901, § 7342, subdiv. 8.) “ ‘Land/ in its legal signification, comprehends any grounds, soil or earth whatever.” (5 Words & Ph. Jud. Def. 3975.)
The contract did not attempt to specify the quantity of land that defendant was to purchase in order to obtain the right to countermand his order. If he had bought an unplatted tract of ground equal in extent to block 8 in Kingfisher it could not be denied upon any theory that this would have been a purchase of land. The rights of - the parties can hardly be thought to be affected in any possible way by the question of whether the tract purchased had been laid out in lots and blocks.
It is suggested that the context shows that arable land and not a town block, and a permanent removal to Oklahoma and not a mere journey thither, were within the contemplation of the parties to the contract, inasmuch as it can be inferred that the defendant inserted the clause in question for his protection in case he should cease to have occasion to use the machinery by reason of his buying a farm elsewhere and going to reside upon it. It may equally well be supposed, however, that the clause was intended to release him in case his contemplated purchase of any Oklahoma real estate should divert enough of his resources to another channel to make it inexpedient for him to invest in this thrashing outfit so large a sum as he could otherwise afford.
Evidence was offered for the purpose of showing that the contract should be given the interpretation for which the plaintiff contends. That upon which the greatest reliance seems to be placed was, in substance, that in a conversation which was had after the contract had been entered into, between the defendant and a representative of the plaintiff, the latter said that the former would not be relieved from his obligation to take the machinery unless he should buy a farm in Oklahoma, and that afterward the defendant inquired of a third person whether he thought the purchase of a town lot or block there would be sufficient to effect his release. Neither this evidence nor any other that was offered had any tendency either to explain away the natural effect of the language of the agreement by exhibiting the circumstances under which it was made or to show that the parties had given it an interpretation different from its obvious meaning.
It is true that the construction placed upon the reservation in the contract by the trial court is literal, but the language used is plain and unambiguous. If it does not mean precisely what it says it would be difficult for any tribunal to attach to it any definite meaning whatever. It is also true that this construction practically makes the entire instrument subject to cancelation at the will of one of the parties, for the defendant, if desirous of escaping its burden,. could easily comply with the conditions which would give him that privilege. But it is not apparent that this consideration gives the machinery company any just cause to complain. The contract was voluntarily made, was not unconscionable, and resulted in no hardship. No grounds are presented for a court to grant relief against its terms. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
Many errors are assigned by the railway company, among which are the refusal of the court to sustain its demurrer to the plaintiff’s evidence, the refusal of the court to give certain instructions asked by its attorneys, and the refusal of the court to set aside the verdict and special findings of the jury and grant a new trial. Except as to the last objection we think the rulings of the court were correct. The instructions asked by the defendant, so far as they were correct statements of the law, were embraced in the instructions given by the court. Indeed, we think the instructions given to the jury by the learned judge were an admirable exposition of the law as applicable to every phase of the facts presented by the pleadings and evidence.
Yet the jury seem to have overlooked one very important element affecting the defendant’s liability, viz., to make it the duty of the engineer to stop his train under the circumstances shown in this case it was essential: (1) That he should have seen or have been in such a position that he ought to have seen that plaintiff was in a place of danger from the approaching train; (2) that it should have been evident to the engineer that the plaintiff could not, or would not, so change his position as to be out of danger before the train would reach him. (C. R. I. & P. R. R. Co. v. Austin, Admx., 69 Ill. 426; Fla. Cen. & Pen. R. R. Co. v. Edward Williams, 37 Fla. 406, 20 South. 558; Campbell v. K. C. Ft. S. & M. Rld. Co., 55 Kan. 536, 540, 40 Pac. 997.) The court below correctly stated this proposition in its eleventh instruction. The twelfth, thirteenth, nineteenth and twenty-third instructions, however, gave the first but omitted the second requisite of liability as above stated. The jury should, of course, have read all of the instructions together, and should have read or considered the four instructions last named as modified by the eleventh. It is quite probable, however, that the jury may have been misled by the omission. The submission of questions Nos. 3 and 4 requested by plaintiff, omitting as they did the second element of liability, tends to strengthen this probability. With the answers thereto, the questions were as follow:
“(3) Ques. If you answer question No. 1 in the affirmative, was the plaintiff at such time in a dangerous position? Ans. Yes.
“ (4) Q. If you answer question No. 3 in the affirmative, did engineer Mason see, or by the exercise of reasonable and ordinary care and diligence should he have seen him, the plaintiff, in such dangerous position? A. Yes.”
In answer to the next question the jury said that the engineer saw the plaintiff’s danger in time to have stopped the train before the collision. It is nowhere specifically found by the jury that the engineer saw, or ought to have seen, that plaintiff could not, or probably would not, get out of danger before a collision would occur. There is a presumption, however, that the jury found all facts necessary to sustain the general verdict. If, then, it is to be presumed that the jury found this essential fact in favor of the plaintiff, the question arises', Was there evidence to support such a finding?
The only evidence of the width of the wagon is that its extreme width from hub to hub was five feet and eight inches, and that the bridge-irons were twelve feet, the railroad-ties fourteen feet, and the other loaded wagon ten feet north of the north rail of the main track. The plaintiff testified that he drove as close to the bridge-irons and ties as possible. If he had left one foot of space between his wagon and the bridge-irons there would still have been over five, feet clear from his wagon to the north rail of the track in which plaintiff could have walked. It is true the plaintiff said he was inside the north rail of the track, on the ends of the ties or close to the ends of the ties, all the time after he entered the lane between the obstructions and the track. The engineer said the plaintiff was walking along five or six feet from the north rail from the time he entered the lane till the train was within about fifteen feet of him. The engineer was certainly about right in this estimate, or the plaintiff was walking several feet nearer the track than wás necessary, and could at any time have stepped nearer to his wagon and been out of danger.
Here is the situation: The engineer testified, and no witness disputed it, that he saw the plaintiff drive into this lane in plain sight of the approaching train. He had a right to assume that plaintiff was in the possession of all his faculties, knew of the approaching train, and that he had a team that was safe to drive into such a place. There was, in fact, plenty-of room for both man and team to keep clear of the track and train. So long as these conditions existed the engineer was under no obligation to stop his train, and hence was guilty of no negligence in failing to do so. But the plaintiff drove near the west end of the lane to the loaded wagon, which was two feet nearer the track than the other obstructions, and had to turn his wagon so much nearer the track. His wagon was long, and to get the hind wheels of his wagon two feet south he was obliged to turn his team much nearer the track. The watching engineer then saw the danger, sounded the alarm, and applied the air-brakes, but it was too late to stop the train. The plaintiff at that time had only about three feet between his wagon and the track, perhaps less at the front of his wagon, and the pilot-bar of the engine reached over eighteen inches of this space. He turned his horses away from the track, but he himself got nearer, either in trying to manage his horses or in trying to escape, and was struck and injured.
This is not a verbatim statement of the evidence of any witness, but is in substantial accord with the evidence of all, including the plaintiff, who testified as to what occurred after he reached the loaded wagon. There is some discrepancy as to the distance the engine was from the plaintiff at the time the danger signal was given and the air-brake applied, as might well be expected under the exciting circumstances, but no evidence justifies the finding of the jury that the engineer saw the plaintiff in such a dangerous position that it was the engineer’s duty to stop the train at a time when the engine was 200 feet or more away. Be sides, it is improbable that the jury would have made such finding had not instructions twelve, thirteen, nineteen and twenty-three permitted them to do so without further finding that the situation of plaintiff was such that it was apparent to the engineer that the plaintiff could not, or would not, move out of danger before a collision would occur. As a proposition of law this was not the situation of plaintiff until he drove between the loaded wagon and the track, and, even then, had the plaintiff’s horses been as indifferent to the approaching train as the engineer had a right to assume they were, in view of the reckless manner in which the plaintiff drove them into the lane, the plaintiff could easily have avoided a collision, though the space was narrow.
However, under all the circumstances shown by the evidence, we think it was the engineer’s duty immediately to stop the train as soon as he saw the plaintiff drive into the narrow space between the loaded wagon and the track, but we think the evidence fails to show that he did not do so.
The judgment is reversed and a new trial granted.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
The plaintiff makes nine assignments of error which may be fully stated in one — that the court erred in sustaining the demurrer to plaintiff’s evidence. If this ruling was not erroneous the denial of the motion for a new trial and the judgment against the plaintiff were right. So we have only to consider the one question, Was the demurrer properly sustained ?
The negligence alleged was: (1) In maintaining a rotten pole which absorbed water and thus became a good conductor of electricity; (2) the failure to shut off the electric current before the plaintiff was directed, and attempted, to. cut the wire. The defenses alleged were: (1) That the injury occurred through the contributory negligence of the plaintiff; (2) if from any other cause, through the contributory negligence of a fellow servant.
It was admitted that the defendant’s light plant was in charge of one Ward, as superintendent. There was evidence that he was also the engineer at the powerhouse and employed the men; that plaintiff had worked for defendant some years before Ward became superintendent, but was not so employed at the time Ward assumed his position; that Ward reemployed plaintiff, and was informed by the latter that he “did not work among the wires when the current was on;” that some time after plaintiff commenced work under Ward’s supervision the latter said to plaintiff: “Mr. Evans is here from Fort Worth. He is the foreman of your line. You will look to him for your orders and instructions from how on.” The evidence further showed that from this time Evans and the plaintiff, and sometimes a third man, did the line work; that on the day of the accident the plaintiff and Evans were called, by a signal, from their work to the power-house, and were informed by Ward that a wire was down a short distance away; that they drove immediately to the point indicated, saw a loose wire, and got out of the conveyance; that plaintiff proceeded to put on his “climbers” and requested Evans to telephone to the power-house to have the current turned off; that plaintiff climbed the pole a little distance and, sitting on a mail-box attached thereto, awaited the return of Evans; that a crowd of people had assembled; that Evans soon reappeared and called to the plaintiff: “All right; go ahead.”
It was also shown that the plaintiff, without stopping to investigate or to observe the condition of the wire, as to whether it was “alive” or “dead,” immediately ascended the pole, with his back to the wire, grappled it with his pliers to cut .it loose from the pole, and instantly received a great shock of electricity; that he was thus rendered unable to release his hold on the wire and was severely burned — was hung there till the current was shut off; that there was 1000 voltage on the circuit, and that 800 voltage will kill. The evidence also showed that it was very dangerous to attempt to cut a wire under the circumstances shown. There was some evidence that the plaintiff, by looking, could have told that the wire was alive at the time he started to climb from the mail-box; but it was shown to depend upon whether the end of the wire was in a wet or dry place — which was not proved— and whether or not people stood between him and the end of the wire.
It is contended that the evidence of plaintiff unquestionably showed, as a question of fact, that the plaintiff was guilty of contributory negligence — that it required no weighing of the evidence to come to this conclusion; or, the facts being admitted as shown by the evidence most strongly in favor of the plaintiff, that, as a proposition of law, there was contributory negligence on the part of plaintiff. We hold that neither of these positions is tenable.
“Whether negligence in a particular case is shown is ordinarily a question for the jury; but when the facts are undisputed, or are definitely found by the jury, and only one conclusion can be drawn therefrom, it becomes a question for the court.” (U. P. Rly. Co. v. Lipprand, 5 Kan. App. 484, 47 Pac. 625.)
(See, also, Dewald v. K. C. Ft. S. & G. Rld. Co., 44 Kan. 586, 24 Pac. 1101.)
By the demurrer the evidence of plaintiff is admitted as true, but it does not follow that only one conclusion can be drawn therefrom. It still remains to determine, from all the facts and circumstances disclosed by this evidence, whether the plaintiff, in the exercise of ordinary care for his own safety, was bound to determine for himself if the current was cut off or whether he had a right to assume this when his foreman shouted to him: “All right; go ahead.” Different minds might form different conclusions as to what this evidence proves, as opposing counsel have well illustrated in their briefs. The conclusion is for the jury, not for the court. '
Again, it is urged that the evidence showed Evans to have been a fellow servant, and, if his negligence was the proximate cause of the injury, the plaintiff is not responsible. We cannot agree with this contention. On the contrary, we think the evidence, viewed in its most favorable light to the plaintiff, showed Evans to have been acting as a vice-principal when he shouted to plaintiff: “All right; go ahead.” The rule requiring a master to furnish his servant a reasonably safe place to work has no iron-bound limitations as to whether the place be a permanent or a temporary one. If the master sends a servant to work in a place of danger, however temporary, and the danger arises from acts or omissions of other servants against which the servant has no means of protecting himself, it is the duty of the master to provide such warnings or to take such other steps as may be reasonably necessary to safeguard the servant so employed; and if another servant of higher or lower degree is delegated by the master to attend to such safeguarding he is performing the functions of the master, and if guilty of negligence the master is responsible. (Brick Co. v. Shanks, 69 Kan. 306, 76 Pac. 856.)
In this case Ward, who was a vice-principal in conducting the entire business of the defendant in running the plant, sent Evans, the foreman of the line, and the plaintiff, a lineman, to repair a broken wire which Ward knew, or in the ’ exercise of reasonable care should have known, was a “live” wire. Ward was also bound to know that it was very dangerous to adjust a live wire, and that the safety of the lineman required the shutting off of the current. The plaintiff exercised the usual means to have the current shut off, which probably should have been done without suggestion from him. The foreman, aiding in the per formance of the duty of the master, in effect told plaintiff that the current had been cut off and ordered him to go ahead. If, as the jury had a right to find, the plaintiff was justified in relying on this assurance without investigating the truthfulness of it, then the proximate cause of the injury was the negligence of Ward or Evans, or both, as vice-principals.
We are not assuming that a foreman is necessarily a vice-principal as to the men employed under him. He is a fellow servant when laboring to accomplish the-common object or purpose of the laborers. He is a vice-principal when performing the duties, or aiding-in performing the duties, which by law devolve upon the master. (Brick Co. v. Shanks, 69 Kan. 306, 76 Pac. 856; H. & St. J. Rld. Co. v. Fox, 31 Kan. 586, 3 Pac. 320; Mining Co. v. Robinson, 67 Kan. 510, 73 Pac. 102; Bridge Co. v. Miller, 71 Kan. 13, 80 Pac. 18.)
The judgment of the court below is reversed and the case is remanded, with instructions to grant a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
The counsel for the defendant have manifested a commendable degree of zeal and industry, as well as considerable erudition, in their effort to convince this court that the word “unlawfully,” as used in section 2016 of the General Statutes of 1901 and in the information in this case, means “denounced as a crime,” or “made criminal by a statute of this state.” It is urged that words used in the definition, and in the charging, of crime should be strictly construed; that their meaning should not be stretched to cover a supposititious intent of the legislature, or to make criminal acts that the court might deem it expedient to punish but which are not included in the clearly expressed provisions of the criminal statute. It is said that by no statute other than the one under consideration is sexual intercourse between a single man and a single woman or a female child, which is not incestuous and is not procured by promise of marriage nor by force, made criminal; hence, that it is not unlawful. To all this, except the conclusion, we assent.
On the other hand the obvious intent and purpose of the law should not be defeated by any hypercritical construction of words. Our rule of construction is prescribed by section 7342 of the General Statutes of 1901, as follows:
“Words . . . shall be construed according to the context and the approved usage of the language; but technical words, . . . and such others as may have acquired a peculiar and appropriate meaning in law, shall be construed according to such peculiar and appropriate meaning.”
Judged by either of these tests — “the approved usage of the language” or the “peculiar and appropriate meaning in law” — if, indeed, the word has acquired any peculiar meaning in law, “unlawful” is not synonymous with “criminal.” To speak of an act as unlawful is not equivalent to saying that it has been denounced as a crime. Every criminal act is illegal or unlawful, but illegal or unlawful acts may not be criminal. Offenses against public law are criminal; offenses against private rights are merely illegal or unlawful. In law literature we meet the word constantly in the sense of “not authorized or permitted by law;” thus, unlawful interest, unlawful entry (referring to a trespass), etc. In the common-law definition of murder, “the unlawful killing of a human being with malice aforethought,” and of manslaughter, “the unlawful killing of a human being without malice,” the word is used in the same sense as in section 2016 of the General Statutes of 1901, viz., without legal justification or excuse — without legal authority or right. The word “unlawful” is used in this sense in section 5511 of the Revised Statutes of the United States, as interpreted by the supreme court of the United States in United States v. Watson, 17 Fed. 145, 149. (See, also, Terrell v. State, 86 Tenn. 523, 531, 8 S. W. 212; State of Iowa v. Lightfoot, 107 Iowa, 344, 348, 78 N. W. 41, 42.)
Authorities could be multiplied, but it is unnecessary. It is conceded that this contention has been adversely decided by this court in The State v. Frazier, 54 Kan. 719, 39 Pac. 819, which we are asked to reverse. While some expressions in that case might well be modified, we reaffirm the decision. “Unlawfully,” as used in section 2016, supra, might well be interpreted to mean “without lawful wedlock,” and hence without authority of law, or not permitted by law.
The contention that there can be no assault by consent may be admitted. It is not charged that carnal knowledge was procured or accomplished by the assault. The latter is not charged as a manner of committing the crime, in which case the proof would have to conform to the allegation, but it is charged that the defendant did assault, and did carnally and unlawfully know, etc. The charge of assault is unnecessary, and may be regarded as mere surplusage; and, even if proof of an assault be lacking, there is no variance.
Again, it is contended that the information is bad in that “unlawfully” is a conclusion at best, and the facts showing that the act was done unlawfully should have been, but were not, stated. There is some authority sustaining this objection; but the charge was made in substantially the words of the statuté, and this, as a general proposition, is sufficient. The defendant was fairly informed of the offense charged against him, and, had he admitted the charge, the court, by an examination of the record alone, could have determined that a thing forbidden by law had been done and the penalty that the law attaches thereto. (The State v. Gavigan, 36 Kan. 322, 13 Pac. 554; The State v. Foster, 30 Kan. 365, 2 Pac. 628; The State v. Beverlin, 30 Kan. 611, 2 Pac. 630.)
It is claimed that the verdict is not supported by sufficient evidence in that it depends upon the testi-' mony of the prosecutrix alone, and that she contradicted herself in different portions of her testimony, and even admitted that on a former hearing she testified to facts she knew to be false. At the common law the evidence of the woman, even an infant prosecutrix; was sufficient, without corroboration, to sustain a conviction of rape. (23 A. & E. Encycl. of L. 884.) Our statute makes no provision on the subject; hence the common-law rule is in force in this state. Were corroboration necessary, however, there was an abundance in this case. The credibility of the evidence, if within the bounds of reason, rests with the jury and trial court, and cannot be considered here.
The defendant appears to have had a fair trial, to have been well defended, and to have been righteously convicted, and the judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
In an action of ejectment the defendant based his right to the land upon a tax deed which had been recorded some seven years, and possession under such deed during the same period. The plaintiff attacked the deed as being utterly void for several reasons, but the district court held against him, and from an adverse judgment he prosecutes error. The deed contains the following recital:
“And whereas, the treasurer of said county did, on the 26th day of October, A. D. 1891, by virtue of the authority in him vested by law, at (an adjourned sale of) the sale begun and publicly held on the fourth Monday of October, A. D. 1891, expose to public sale at the county-seat of said county, in substantial conformity with all the requisitions of the statute in such case made and provided, the real property above described. . . .”
Because of the parenthetical statement (which the inattentive draftsman failed to strike out of the printed form of deed he used) it is claimed an unauthorized sale is disclosed. The fourth Monday of October, 1891, was the 26th day of that month, and since the land described was, according to statements of the deed, sold on that day, at a tax sale begun and publicly held on that day, the words “an adjourned sale of” are meaningless, may be entirely disregarded (Thompson v. Colburn, 68 Kan. 819, 75 Pac. 508), and an October sale under section 125 of the tax law (Gen. Stat. 1901, § 7657) is undoubtedly disclosed.
If under the provisions of any statute the sale upon which a tax deed is based may have been legally made upon the day named therein the deed will not be void on its face, if otherwise regular. (Patterson v. Carruth, 13 Kan. 494; Morrill v. Douglass, 17 Kan. 291, 293; Jordan v. Kyle, 27 Kan. 190.)
It is urged, however, that the statute referred to was enacted for a special purpose; that even although an October sale be recited the treasurer has no power to sell in that month, unless he has unavoidably failed or omitted to sell in September, or has been enjoined; and hence that a deed pursuant to an October sale is void on its face if it fail, as this one unquestionably does, to recite the special circumstance necessitating it. The cases of Duncan v. Gillette, 37 Kan. 156, 14 Pac. 479, and Douglass v. Wilson, 31 Kan. 565, 3 Pac. 330, are cited in support of this position. The' cases relied upon arose under statutes relating to the disposition of unredeemed lands which the county had purchased at regular tax sales. In the first one the statute provided for a second sale, and in the other for the issuance and assignment of a certificate of sale after a compromise. These were special and unusual measures, outside of and beyond those ordinarily sufficient to enforce the collection of taxes, and the court held in each instance that tax deeds based upon such proceedings must recite all the essential facts in order to be formally sufficient, no statutory form at all suitable for the purpose having been provided. These decisions are sound and have never been disturbed.
But the section of the statute providing for October sales is not, as the plaintiff claims, either peculiar or special in its character. It is a portion of the general law relating to the assessment and collection of taxes. It does not vest in the tax-collecting officers any exceptional or different authority from that exercised in making September sales. Omission or failure or inability to sell on a given day is not an additional step in the tax-collecting process, and does not invest the treasurer with a new power to sell at another time. On the other hand, September and October sales are fully coordinated. Each is to be conducted, in conformity with the same provisions of the same act, and each is to be of equal force and effect with the other. The statutory form of deed is as fully adapted to one class of sales as to the other, and no sufficient reason appears for not using it in both.
So far as the recitals of the deed disclose the consideration stated is the exact amount the purchaser paid for the land, as indicated by the tax certificate upon which the conveyance is based. Therefore, it complies with the rule announced in Bowman et al. v. Cockrill, 6 Kan. 311, 325. But if the consideration named were too small, as plaintiff contends, the same decision, which has ever since been followed, holds that the deed would not, on that account, be void on its face.
Finally, it is claimed the deed does not bear the seal of the county. There is a seal affixed, but it contains in the center the words, “Seal of County Clerk, Decatur County, Kansas.” There is no law authorizing seals for clerks of counties. The county should have a seal for the authentication of its official acts, and the board of county commissioners is at liberty to adopt one bearing any legend or device it may choose. Under section 138 of the tax law (Gen. Stat. 1901, § 7676), the matter of affixing the seal is a part of the execution of the deed. This deed states that it is executed pursuant to statutory authority, and that the official seal of the county is affixed; and the acknowledgment shows that the act of the clerk in executing the instrument was an official act performed by virtue of his office. Under these circumstances the words of the seal, “county clerk,” are not sufficient to overthrow all other indications of due execution, and the deed is valid on its face. No evidence was introduced to show that the seal used was not in fact the seal of the county, and hence the deed is not void for want of a seal. (Brown v. Cohn and another, 85 Wis. 1, 54 N. W. 1101, 20 L. R. A. 182.)
In view of the foregoing it is not necessary to discuss other grounds upon which the judgment of the district court is based, and such judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The controversy in this case is whether a written lease conforms to the agreement of the parties. After considerable negotiation James F. Hardy and his wife signed an oil-and-gas lease to the Kansas Pipe-line and Refining Company. It was written by an agent of the company, examined by an agent of the Hardys, and read aloud in their presence before it was signed; but it is claimed that it was not correctly read, and that provisions which it was supposed to contain were fraudulently omitted. It was alleged that Mrs. Hardy was blind, and that Mr. Hardy’s vision was greatly impaired; that the lease was executed in the night-time; that because of their infirmities the Hardys had to depend upon others to ascertain the contents of the prepared lease; and that the agent of the company conspired with their agent to procure the signing of a lease which differed materially from the agreement arrived at and from that which the lease was supposed to incorporate. They therefore brought this suit against B. E. LaDow, to whom the lease had been assigned, and who had purchased it for the Fredonia Gas Company, which was also made a party defendant ; and in their petition they asked for a cancelation of the lease, “and for such other and further relief as to the court might seem just and proper.”
The answer of the defendants denied that the lease was incorrectly written or wrongfully obtained; alleged that it had been read aloud before it was signed, and that a copy which was compared with the original was left with the Hardys and had been in their possession ever since its execution; that the defendants had purchased the lease and expended large sums of money in laying pipes and mains across the lands of plaintiffs for the purpose of conveying the gas from the' wells to be drilled on and near the premises of the plaintiffs; that this was done with full knowledge on the part of the Hardys of the assignment of the lease; and that they made no objection thereto and gave no intimation that the lease was wrongfully obtained until about the time the suit was brought. It was alleged that the assignment of the lease was taken and $600 paid therefor by the defendants upon the belief that it was a valid instrument, and without knowledge that there had been any wrongs or defects in its execution, and they averred that it would be inequitable and unjust to permit the plaintiff now to assert that the lease was void and of no value.
The circumstances of the transaction were fully presented to the court at the trial, and its opinion as expressed in the record was that “no wilful fraud or wrong had been perpetrated on the plaintiffs in the matter of the execution of the lease in controversy, but that any deviation in the terms of the written lease from the actual contract between the parties thereto occurred simply by reason of an innocent mistake or misapprehension.” The court further found that when the defendants acquired the lease they had no notice of any defects in its execution, or of any equities in favor of the plaintiffs; that, while plaintiffs were entitled to relief, it would be unjust to decree a cancelation of the instrument; that in equity and in justice to all the parties the lease should be reformed so as to conform to the agreement and understanding of the parties at the time of its execution. Judgment was accordingly given.
The first and principal complaint is that the court exceeded its authority in reforming the lease, when the only relief sought was its cancelation. It is insisted that the prayer of the petition measured the power of the court in rendering judgment. While the code requires that the plaintiff shall demand the relief to which he supposes himself to be entitled, the relief which the court may grant him depends upon the facts alleged in the petition rather than upon the arbitrary demand which he may make in the prayer. In the third edition of Bliss on Code Pleading, section 161, it is said:
“If the facts put in issue and established by evidence entitle the party to any relief in the power of the court to give, although not that demanded, it is the duty of the court to give it, and its power to do so is not conditioned upon the form of the prayer.”
(See, also, Walker v. Fleming, 37 Kan. 171, 14 Pac. 470; Henry v. McKittrick, 42 Kan. 485, 22 Pac. 576; Bank v. Wattles, 8 Kan. App. 136, 54 Pac. 1103.)
The prayer of a pleading is sometimes used to explain the averments that precede it, and a party who is given no more than he demands may not be in a position to complain; but, so far as the court is concerned, it is the case made by the pleadings and the facts proved, and not the prayer of the party, which determines the measure of relief which the court may award. In Smith v. Kimball, 36 Kan. 474, 492, 13 Pac. 812, it was said:
“However strongly a pleader may be bound, and however much he may be estopped by the averments of facts in the body of his pleadings, it is doubtful whether he is bound or estopped by his prayer for relief. He is supposed to know the facts upon which he predicates his action, and to state them as he understands them, but the relief to which he is entitled on the facts related is a question for the court, and over which he has no control.”
Here, in addition to the demand for the cancelation of the lease, was a prayer for general relief. Under the equity practice a mistake in the demand for special relief does not preclude the court from granting the proper relief under the general prayer. (Tayloe v. Merchants’ Fire Ins. Co., 50 U. S. 390, 406, 13 L. Ed. 187; Stevens v. Gladding et al., 58 U. S. 447, 454, 15 L. Ed. 155; Patrick v. Izenhart, 20 Fed. [C. C.] 339; 5 Encyc. Pl. & Pr. 956.) Under the code the power of the court to grant relief under a general prayer is no more restricted than under the equity practice; and, indeed, the theory in some courts is that the general prayer, although not expressed, is always implied in actions of this character. (Knight v. Houghtalling, 85 N. C. 17.)
In this case the plaintiffs set up the contract of the parties, and asked for the cancelation of the same on the ground of fraud. The court in effect found in favor of the plaintiffs as to the character of the contract; that a mistake had been made in the execution of the lease, but that no actual fraud had been committed in its execution. The decree of the court gave effect to the actual agreement of the parties, and the reformation of the lease for this purpose was consistent with the pleadings and the proof of the case, and certainly within the power of the court to grant.
The contention that the contract found and declared by the court was not the one made by the parties cannot be sustained. Although the parties did not agree fully as to the interpretation of some of the provisions, there appears to be little dispute in the testimony as to the substantial features of the agreement actually made and intended to be included in the written lease. In the provision that if either oil or gas should be found in paying quantity another well should be drilled within six months thereafter, and one in each succeeding six months until eight wells were drilled, the words “or gas” were left out of the lease, which was a substantial departure from the agreement; but their omission, as the court found, was an innocent mistake. The use of the words “or gas” in one part of the lease to some extent indicates that their omission in another part was inadvertent. The testimony appears sufficiently to support the finding of the court as to the terms of the agreement, and these are fairly included in the lease as reformed by the court.
The judgment of the court appears to have been not only.within its powers, but in accord with equity and justice, and therefore it is affirmed.
All the Justices concurring. | [
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Per Curiam:
The cases cited by plaintiff in error, on misconduct of counsel in addressing the jury, are not in point. In all of them matters not in evidence were stated. In this case the deposition from which Mr. Campbell read in his argument was before the jury in its entirety. The controversy which arose when Mr. Campbell was reading a part of Morgan’s answer, and the demand that he read all of it, must have refreshed the recollection of the jury as to the part omitted, which they had already heard.
The failure properly to burn fire-guards was not found to be the sole ground of negligence of the railroad company, so that the origin of the -fire beyond the right of way did not exempt the company from liability. Other acts of negligence than a failure to burn fire-guards were alleged in the petition, and such other negligent acts were neces- ■ sarily found against the company in the general verdict. ( Railroad Co. v. Chace, 64 Kan. 380, 67 Pac. 853.)
This case has been pending since 1891. It has been in this court twice. (58 Kan. 768, 51 Pac. 286; 64 id. 187, 67 Pac. 547, 91 Am. St. Rep. 189).
The judgment of the court below will be affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J. :
This was an action by William Platte to recover from Swift & Company for injuries sustained by him while descending a dark stairway in thej'packing-house of the company. He was an employee of the company and had been at work in a part of the packing-house where the accident occurred about three weeks. The stairway by which Platte and his associates left the building was in two sections, the upper section being cased up and dark at ail times except when artificially lighted. For the purpose of lighting it, an electric light was placed within the casement near the head of the stairs, and prior to the accident this light had been always burning when Platte went up and down the stairway. "When he and others stepped inside on the night of the accident there-was no light, and as he was about to descend andt reached to the side for a railing or something to steady himself he lost his balance and fell, by which he suffered serious injuries. His action is based on the-nbgligence of Swift & Company in not maintaining; sufficient light and in not providing a hand-rail.
There was no switch or other method of regulating the light in the stairway except in the engine-room some distance away. It was alleged that the light in this stairway was frequently extinguished, a fact known to the company but unknown to Platte, and that, while the latter had passed up and down the stairway, he did not know of the uncertainty of the light nor had he observed that there was no hand-rail.
Another ground of negligence was the failure to provide a system of inspection to insure the burning of the light when wox-kmen were necessarily using the stairway.
The trial resulted in a general verdict in faVor of. Platte and in special findings to the effect that' he-daily ascended and descended the stairway for two or-three weeks prior to the accident, during which time*' the light at the head of the stairway was always burning ; that in doing so he had opportunity to observe there was no hand-rail, and that he reached for a hand-rail just before he lost his footing and fell. The jury were unable to determine how long prior to the accident the light in the stairway had been out, or who turned it out. They also found that the plaintiff, by extending his arms in the stairway, could reach both sides of it, but were unable to state whether he would have lost his footing if he had placed his hands on both sides when descending. The amount of dam ages awarded was $1850, and to reverse the judgment rendered this proceeding is brought.
First, it is contended that the plaintiff in error, being a foreign corporation and not having complied with all of the statutory regulations as to such corporations, is not authorized to do business in Kansas, or to maintain this proceeding. While the company had made the required annual statements it appears that it had not at the time paid the charter fees or taken other steps essential to the obtaining of a certificate of authority from the charter board. The statute provides :
“No action shall be maintained or recovery had in any of the courts of this state by any corporation doing business in this state without first obtaining the certificate of the secretary of state that statements provided for in this section have been properly made.” (Laws 1901, ch. 125, §3; Gen. Stat. 1901, § 1283.)
Assuming, but not deciding, that this provision applies to other requirements than the making of annual statements, we still think it is not a .bar to the review sought here. It will be observed that the prohibition is directed at the bringing of actions and not at the making of defenses to actions rightly brought. Platte brought the company into court, and having forced it into litigation he is hardly in a position to say that it shall not contend with him to the end. The action mentioned in the statute refers to an ordinary proceeding in a court of first instance and not to an appellate proceeding brought to correct the errors of such court. The proceeding in this court, although in some respects distinct from the action in the trial court, and although the steps taken in the commencement of each are somewhat analogous, is purely appellate, and is, in a certain sense, a continuation of the controversy in the district court. Swift & Company had not a right of action, but only a right of review, and while the company instituted the proceeding here it is still in an attitude of defense and is resisting the claims and contentions of the plaintiff below. The jurisdiction of the court in such cases is limited to a review of the rulings of the district court, and in the event of a reversal the case is remanded for a retrial. The commencement of such a proceeding cannot be regarded as the prosecution of an action, within the meaning of the statute, and the prohibition can never apply to the institution of a proceeding in error to one summoned into a trial court and made to defend against an action brought by another.
Exceptions were taken to the methods employed by plaintiff’s counsel in impaneling the jury. In the examination of jurors on their voir dire questions were asked which it is claimed suggested to them that the company had accident insurance which indemnified it against loss or any judgment that might result from this and other cases. The following questions were asked and answers given over the persistent objections of the company :
“Ques. If it should appear in the trial of this case that an insurance company which makes it a business to insure employees against injuries was hiring the attorneys and defending this case in the name of Swift & Company, would it make any difference to you in your verdict ? Ans. No, sir ; it would not make any difference.
“Q,. You know of the fact that employees of Swift & Company and Armour & Company are insured by insurance companies? A. Well, nothing more than what I have been told.
“Q. You have been told ? A. Yes, sir.
“Q. And that the insurance companies defend these suits? A. Yes, sir; I have been told so.
“Q,. That they hire the lawyers and pay the judgments ? A. Yes, sir.
“ Q,. Have you heard — do you know from hearsay— whether or not the' insurance companies hire the lawyers and pay the judgments, if any are rendered ? A. Nothing more than what I have heard.
“Q,. That’s it; have you heard it? A. Yes, sir; I have heard it talked of.
“Q. Would the fact that you have'heard that'the insurance companies defend those suits brought against the packing-houses, and that they indemnify the packing-houses against loss, make any difference in your ■own mind in rendering a verdict in a case where one of the packing-houses, or where Swift & Company, for instance, was the defendant ? A. No, sir ; I don’t know as it would.”
•It is argued that the questions suggested the existence of facts which were intended and calculated to prejudice the jury against the company. Objections to the statements made having been overruled, it is said that they went to the jury with the force and effect of evidence, and that they were not relevant or-competent upon any issue in the case. (O’Neill Mfg. Co. v. Pruitt, 110 Ga. 577, 36 S. E. 59; Sawyer v. Shoe Co., 90 Me. 369, 38 Atl. 333; Barrett v. Bonham Oil & Cotton Co., 57 S. W. [Tex.] 602.)
Considerable latitude should be allowed counsel in the examination of jurors, so that all who have bias or prejudice, or are otherwise disqualified, may be eliminated, but the inquiry should never be made to introduce extraneous matter of a prejudicial character that may improperly influence the verdict. Q,ues-tions are not to be barred merely because .^he aQgwej.g elicited would be incompetent under the issues in the case; nor .are parties to be hampered in a thorough examination, made in good faith, to keep off the panel partial, prejudiced and unfit men. The inquiry maybe extended to the social and business relations of the proposed jurors with the parties to tbe action or with any one connected with the litigation. It should, however, as before stated, be conducted in good faith, by pertinent inquiries, for the purpose of sifting the panel and excluding those who are disqualified or objectionable by challenges peremptory or for cause.
In this instance it is the view of the court that the examination was unnecessarily and erroneously extended. The inquiries were not so much directed at the possible connection of jurors with insurance companies or with those representing them, but mainly pressed upon the jurors questioned, as well as those listening, the fact that packing companies were insured, and that these companies were hiring the lawyers and would pay the judgment if any should be given. The statements were not limited to the placing of an insurance company behind Swift & Company, but they carry the idea that Armour and other packing companies rely on their insurance against accidents to their employees, and therefore have little concern as to the accidents or to the actions which may be brought to recover for the injuries. In a case somewhat like this it was expressly held that “in the examination of jurors in personal-injury cases it is error to permit counsel for the plaintiff to ask questions which allow the jurors to take into consideration the fact that the defendant is insured in a casualty company against loss from accidents.” (Eckhart & Swan Milling Co. v. Shaefer, 101 Ill. App. 500.) This is deemed to be prejudicial error for which there must be a reversal.
The writer is unable to concur in this view. The scope of a voir dire examination must be left largely to the sound discretion of the trial court. There is no more important feature of a trial than the impaneling of an impartial and unbiased jury, and courts are very liberal in allowing inquiries into the competency and qualifications of persons called as jurors. The examination serves a double purpose — first, to learn whether there is a disqualification or cause for challenge, and, second, to enable a party to determine whether he shall exercise the right of peremptory challenge given by statute. So careful is the law that a fair jury may be obtained that it not only provides for the exclusion of those shown to be partial or prejudiced, but it gives each party the added right to challenge a certain number not shown to be prejudiced or disqualified, whom the parties may desire to exclude for reasons not recognized by the law. Apart from admitted bias or prejudice, persons maybe excluded from the panel because of possible prejudice on account of pecuniary interest, relationship, or business connection with the parties to the action. They may be excluded because of relationship or connection with the families or attorneys of the parties, or with others who have an interest in the litigation. If the parties to the case are nominal or representative the relation or connection, with the real parties to the action may be shown, and be sufficient cause for challenge and exclusion. So here, if counsel for Platte had reason to believe that the insurance company, althoughnot- named as a party, was principally interested in the action, and that the persons called as jurors had or might have some relation or connection with that company or its agents which might affect the verdict, they had a right to make a searching inquiry as to the attitude of the company and the personal relations of the jurors to it. Of course, it should be done by pertinent questions and within reasonable limits, but the court, which has before it the jurors and counsel, can best determine the character and extent of inquiry that may be necessary or proper. The questions asked in this case, as will be seen, were mainly hypothetical, and therefore were not stated as facts ; and on the whole the writer is unable to say that the questions were not asked in good faith and for legitimate purposes. If we knew the proposed jurors as the counsel and court may have known them, we might readily say that good reasons existed for the character and extent of the inquiry. The counsel deemed it to. be necessary, and the trial judge, who was acquainted with the local situation, decided that it was necessary and proper, and, in view of the large discretion vested in the trial court as to the extent of the inquiry, the rulings ought not to, be treated as a ground of reversal.
I am authorized to state that Justices Greene and Mason join me in dissenting from the .judgment of reversal.
The objections made to rulings on the admission of testimony are not regarded as substantial, and the court is united in the opinion that there was sufficient testimony to take the case to the jury and to sustain the findings and verdict. The case appears to have been fairly presented to the jury, and the exceptions taken to instructions given and refused are not sustained ; but for the error committed in impaneling the jury the judgment of the district court will be reversed, and the cause remanded for a new trial.
Smith, Cunningham, Pollock,'Burch, JJ., concurring.
Johnston, C. J., Greene, Mason, JJ., dissenting.
(74 Pac. 635.)
SYLLABUS BY THE COURT.
1. Jury and Jurors — Examination in Personal-injury Cases. In the voir dire examination of proposed jurors in personal-injury cases it is not necessarily error to allow counsel for plaintiff to draw attention to the fact of the-existence of insurance companies , which indemnify employers against loss or damage which may arise from injuries to their employees, and to conduct an inquiry, in good faith and within reasonable limits, concerning the questions whether such jurors have any connection with, or interest in, such insurance companies, and whether, in case such indemnity exists, it may affect their judgment or the verdict which they may give.
2. - Sound Discretion of Trial Court. The extent of such examination must be left largely to the sound discretion of the trial court, and unless an abuse of it be clearly shown a reviewing court will not interfere. | [
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Per Curiam:
This proceeding in error is based upon a transcript of the record of the district court. The certificate of the clerk is in the following form:
“I, E. F. Nelson, clerk of the district court in and for said county, do hereby certify that the foregoing is a full, true and correct transcript of the record in the above entitled cause, from the rendition of judgment until the overruling of the motion to revive the same, and the sustaining.of the motion to quash and set aside the service of notice thereof.”
So far as this certificate is concerned, the record of the district court may disclose proceedings subsequent to the ruling upon the motion to quash, curing any error previously made. For the want of a positive certificate that the transcript attached to the petition in error is a full, true and correct transcript of the record of the district court, the proceeding in error is dismissed | [
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The opinion of the court was delivered by
Smith, J.:
In March, 1894, Kenneth Mead was a minor twelve years of age and the owner of two lots on which there stood a frame dwelling. The building was destroyed by fire on May 11, 1894, while insured for $600 in the Phcenix Insurance Company. Soon after the loss the mother of the insured settled with the company for $475, through her attorney, C. C. Dail.
On May 26, 1902, after Kenneth Mead became of age, he brought this action against the insurance company to recover the amount of the policy/with interest. The petition sets out the fact of the fire, notice of the loss to the company, and the date and number of the policy, and avers that plaintiff on his part had performed all of its conditions. The petition, to which a copy of the policy was attached as an exhibit, contained an allegation as follows :
“The plaintiff further says that shortly thereafter, to wit, August 2, 1894, through and by a conspiracy between defendant and another person, one C. C. Dail, the said policy No. 4930 was surreptitiously obtained from this plaintiff, then still a minor, and for a small consideration from defendant to said Dail, delivered unlawfully and wrongfully to defendant and by it canceled; so that, if the copy of said policy which is hereto attached, marked ‘Exhibit A’, and made part hereof, is not an exact copy, the failure thereof is attributable to the cancelation of the same by defendant. Plaintiff further says that at said time, nor until the year 1896, he did not have any guardian to represent his interests in that or any other respects, and that only on about the 15th day of May, 1902, did he, when he became of full age, acquire the fight to do so himself; and if any default has accrued in the premises against him he pleads his minority against the same.”
The answer of the defendant below contained three defenses: (1) A general denial; (2) breach of covenant to give immediate notice of loss and make prbof within sixty days ; (3) a failure to bring an action on the policy within twelve months after the fire. To these defenses plaintiff below replied that after the fire he had done all things required of him by the conditions of the policy and that
“thi’ough and by a conspiracy between said defendant and one C. 0. Rail, for a small sum as in payment of said loss so covered by said policy, said defendant unlawfully and wrongfully obtained said policy from the said C. C-. Dail and converted said policy to its own use and canceled the same, whereby it waived all the conditions of said policy required to be complied with by said plaintiff, if they had not been complied with by him, which plaintiff asserts had been done.”
A trial was had to the court without a jury, resulting in a judgment for the defendant below.
The policy contained this condition :
“No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months after the fire.”
It is clear that the action was based on the policy of insurance. The allegation in the petition respecting a conspiracy between the company and Dail was made to excuse plaintiff in his failure to set up a true copy of the policy. The action was not founded on the conspiracy; it did' not sound in tort. In the plaintiff’s reply he alleged that the conditions precedent to a recovery by him had been waived by the insurance company in wrongfully obtaining the policy from Dail, thus confessing that he was bound by all the provisions in the insurance contract except the conditions'pleaded in the answer.
The action of plaintiff below was barred by the limitation of time fixed in the policy for the commencement of an action, which was twelve months from the time of loss. When the policy was issued and the loss occurred the agreement limiting the time within which an action to recover on the insurance contract might be commenced was not illegal. (McElroy v. Insurance Co., 48 Kan. 200, 29 Pac. 478.) By chapter 91, Laws of 1897, such contracts are no longer permitted. (Gen. Stat. 1901, §4446, subd. 7.) The contract limitation in the policy controlled the general statute of limitations and was good even against minor beneficiaries. (Suggs v. Insurance Co., 71 Tex. 579, 9 S. W. 676, 1 L. R. A. 847; O’Laughlin v. Union Central Life Ins. Co., 3 McCrary [C. C.] 534, 11 Fed. 280. See, also, Riddlesbarger v. Hartford Insurance Co., 7 Wall. 386, 19 L. Ed. 257.)
In McElroy v. Insurance Co., supra, the dismissal of an action brought within the time required by the policy was held not to extend the time to begin another within a year, under section 4451, General Statutes of 1901.
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
JohnstoN,- C. J. :
The controversy in this case is as to the ownership and possession of- a stock of goods in Cherryvale, known as the “Variety Store.” It was attached by the sheriff at the instance of creditors of J. F. Bruce and as his property. Nannie L. Bruce, his wife, replevied the stock from the sheriff, claiming it as her own and that she had acquired it by gift from J. M. Bruce, the father of her husband. On her part, it is claimed-that in 1898 J. M. Bruce obtained a half-interest in the stock; that, as he was very old and feeble, he employed plaintiff, who was then Nannie L. Butler, to take care of his interest in the store, and that in 1898 he purchased the remaining interest, when she. was given entire charge of the business and became sole manager for J. M. Bruce. She testified that for this service she received five dollars per week and such goods from the store as she needed for' herself and family. In 1899 she married J. F. Bruce, and thereafter she and her husband lived in the family of J. M. Bruce, and she continued to manage the store. J. M. Bruce died about four months after the marriage, but for a number of months thereafter the business was conducted, in the name of J. M. Bruce, and afterward it was carried on in the name of Nannie L. Bruce, until August, 1901, when the stock was attached. She says that after her marriage and prior to the death of J. M. Bruce the latter told her on several occasions that she had taken good care of the stock of goods and he wanted her to continue to take care of it, and also to care for his wife, Jane Bruce, and that she should receive the stock of goods when he died. The last talk of this kind was about three weeks before his death. At the time these statements were made there was no formal transfer of the goods, nor any delivery of possession. She stated that there never was any transfer before his death an.d that he did not make a gift of the store to her at the time the talks were had ; that the store was to remain his until he died and that she was not to receive it, and did not acquire a title to it, until after his death. She further stated that she continued to manage the store for him until he died, when, as she says, the property became hers.
On the other hand, it is claimed that J. M. Bruce never owned the store nor had any interest in it to give to any one ; that he had no money with which to purchase a stock of goods, and, being about eighty years of age and very feeble, had no interest in business and was unable to give any attention to such an investment. It was further claimed that J. F. Bruce furnished the money with which the store was purchased, and, as he was financially involved in another business which he was carrying on, he used the name of his father in the purchase and management of the store, and arranged that Nannie L. Butler, who was soon to become his wife, should be placed in charge of it; that he conducted the negotiations in the pur chase of the stock, and had a general oversight of the business, while his father rarely visited the store and showed no special interest in the business; that after the marriage of J. F. Bruce and after the death of his father he spent most of his time in the store, and appeared to be managing the business.
After the evidence of both parties had been submitted, the court directed the jury to return a verdict in favor of the sheriff.
• The main question discussed here is whether the the plaintiff acquired any ownership or interest in the property by the proposed gift from her father-in-law. If it be granted that J. M. Bruce had something to donate, did his proposals and statements made to the plaintiff constitute a gift ? It will not be seriously contended that there was a gift causa mortis, as the things essential to such a gift were not present. One of" these is that it shall be made in view of impending death; another, that the donor shall die from' the disorder or peril; and still another, that there shall be an actual delivery of the thing donated. Some, if not all, of these essentials were lacking, but we still have the question whether there was a gift inter vivos, or any other legal donation of the property.
To constitute a gift of any kind it must be completely executed and go into immediate effect. Whether it is a gift causa mortis or inter vivos, an essential to its validity is that there was an actual and complete delivery of the property made in execution of the gift and for the express purpose of consummating it. Here it is admitted that the gift was not to take immediate effect. No transfer or change of title was contemplated by the parties at the time the proposals were made, nor until the death of the donor, and in fact there was no delivery or change of possession during the lifetime of J. M. Bruce. Under the testimony we may assume that J. M. Bruce declared a purpose to give Nannie L. Bruce the property ultimately, but it was not to be hers while he lived. She conceded that she was to manage the property for him until his death, whether near or remote, and, therefore, as she was holding the property for him, her possession must be regarded to be his possession. It follows that there was not that relinquishment of claim to the property, nor that surrender of possession and. dominion over it by the donor, nor acceptance by the donee, necessary to a completed and valid gift.
In Gallagher v. Donahy, 65 Kan. 341, 69 Pac. 330, it was held that “to constitute a valid gift inter vivos there must be not only an intention gratuitously to give, but an absolute transfer of. the property, which takes immediate effect.” It has been well said that “a mere intention to make a gift, however clearly expressed, which has not been carried into effect amounts to nothing, and confers no rights in the subject-matter of the. proposed gift upon the intended donee.” (14 A. & E. Encycl. of L., 2d ed., 1017, and cases cited.) There being neither a gift nor a bequest of the property, the plaintiff ’ utterly failed to sustain her claim to the ownership and possession of the property. She was the plaintiff in the action and undertook to recover the possession of the property by virtue of her ownership acquired by gift from her father-in-law, and having failed to prove that she was the owner of the property, and as her possession was only incidental to ownership, she necessarily failed to show a right of recovery, and the court was therefore warranted in directing the jury to find against her.
The attachment processes were valid upon their face, and presumably were issued in good faith. No question was raised at the trial but that the attachment suits were brought by bona fide creditors holding valid claims against J. F. Bruce. An effort was made, it is true, to show that the indebtedness existed at the time the store was purchased, but that there was indebtedness of the amount claimed was not contradicted. The proof in this respect was sufficient to meet the requirements of the case. It was not necessary for the sheriff to make a detailed showing, such as would be necessary in attachment cases, or to litigate all the questions in this action that would be required in such-proceedings. When it was shown that the attachment was issued at the suit of a bona fide creditor, and that the attached property was held on process valid on its face, it was sufficient to entitle the officer to the possession of the property, at least, until some one else showed a better right to hold it.
There was nothing substantial in the objections to the rulings on the testimony, nor do we find any exceptions which justify a reversal.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
.Atkinson, J. :
The Edinburgh Lombard Investment
Company, Limited; filed its petition of foreclosure in the district court of Rooks county on the 11th day of May, 1900, against Emma Cooper et al., to foreclose a mortgage upon land in that county. Defendants answered, claiming a set-off. Upon the trial in the district court defendants were allowed a set-off against the claim of plaintiff, and plaintiff recovered judgment against defendants for the sum of §515.66, with interest at ten per cent, per annum, the costs of suit, and foreclosure of the mortgage. Plaintiff prosecuted error to the supreme court and the judgment of the trial court was affirmed. (The Edinburgh Lombard In vestment Company, Limited, v. Emma Cooper et al., 64 Kan. 888, 68 Pac. 1127.)
On June 25, 1902, after the mandate of the supreme court had been filed in the district court, defendants filed their motion to correct the journal entry in said cause. Upon the hearing of this motion it was sustained, and the court made an order correcting the journal entry so as to show that plaintiff did not recover interest and costs on said judgment of $515.66. To the order of the district court correcting the journal entry the plaintiff excepted, and has brought proceedings in error to the supreme court.
We have carefully examined the record filed in this court. ' The amount in controversy, exclusive of costs, would be the amount of loss of interest which plaintiff sustained by the order of the court correcting said journal entry. This amount is less than $100. The appellate jurisdiction of the supreme court can be exercised in civil actions only where the amount or value in controversy, exclusive of costs, exceeds $100, except in certain cases, and the present case does not come within any of the exceptions. (Gen. Stat. 1901, § 5019; Coal Co. v. Barber, 47 Kan. 29, 27 Pac. 114; Loomis v. Bass, 48 id. 26, 28 Pac. 1012; Skoin v. Limerick, 50 id. 465, 31 Pac. 1051.)
As this court has no jurisdiction to review the case, it will be dismissed.
All the Justices concurring. | [
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The opinion of the court was delivered by
CuNningham, J. :
This action was one in ejectment for the recovery of a three-fourths interest in a tract of land lying between the platted portion of what is now Kansas City, Kan., on the west, and the Missouri river on the east. The plaintiffs are the heirs of the proprietors of the original plat of Wyandotte, now Kansas City, Kan. This tract in dispute is of irregular form, and, as originally delimited upon the plat, was from 700 to 900 feet wide and perhaps a mile long. Upon the plat it was designated and dedicated as “levee.” By reliction and alluvion accretions have been added to the river margin, until now the tract is more than twice the size in width that it was at the time of the dedication.
The defendants are the city of Kansas City ; several railroad companies that have received permission from the city to build upon this tract of land their tracks, depots, etc., and are now using the same for such purposes; some private parties who have erected, and are now maintaining, manufacturing plants of various kinds ; and numerous persons wbo liave squatted and built upon the same more or less temporary habitations, and who appear to be residing there now without permission from any one and as trespassers.
The evidence for the plaintiffs in brief showed that the Wyandotte City Town Company was a partnership ; that the plat of the city, was filed for record in 1859; that there were indicated thereon by name various streets and alleys as dedicated to public use, besides the tract in controversy, which was named 4 ‘ levee ’ ’; that several of these streets running at right angles with the river opened at their eastern ends upon this levee; that quite a large number of lots have no approach to them save that afforded by this levee tract; that at the time of this platting the Missouri river was navigated quite extensively by both freight and passenger boats, and continued so to be navigated up to the year 1866, during which time the current of the river swept well up to the eastern line of the levee and afforded an ample natural landing-place for such boats and the commerce brought by them; that after that time navigation fell off by reason of the fact that railroads were built to and from the town, affording easier and swifter communication, and also that the river became' less navigable and tlie landing less feasible by reason of the fact that the current was diverted to the eastern or Missouri shore, the western shore receiving the accretions above noted, and leaving a wide, marshy and comparatively untraversable alluvion between the river and the “levee” as originally platted. It appeared, however, that occasionally pleasure and other craft had landed there' at differing stages of water, up to five of six years ago, and that, with some improve ments in the way of wharfs and roadways, easy and adequate communication could now be had to the point where navigable water might be reached. At the conclusion of plaintiffs’ evidence the court sustained a demurrer thereto, and they are now here asking a reversal of this action.
Their claim is stated most fairly and frankly in their brief, and perhaps no better basis 6f the discussion here involved can be given than a repetition of their statement. It is:
“This suit proceeds upon the theory that this tract of land'was dedicated to the public for a ‘levee’; that a levee is a landing-place for boats and for commerce carried on by river; that this levee was never improved for such purpose by the city or other person or corporation ; that no boats have landed at it for twelve years, and in all human probability will never again use it for a landing; that it has been permanently abandoned by the city authorities and the public as a ‘levee’ because (1) the decreased flow of water in the Missouri river makes the navigation of that river impossible ; (2) the permanent change in the channel of the Missouri river from the Kansas to the Missouri bank would make impossible an approach by steamboats to the ‘ levee,’ if any should, by chance, appear upon the Missouri river ; and (3) the complete substitution of railroad carriage of freight and passengers for river transportation.”
Upon this premise the plaintiffs deduce the conclusion that abandonment of the use for which this tract of land was dedicated by the original proprietors was shown, and that therefore the title thereto, and with it the right of possession, had reverted to the plaintiffs, as the representatives of such proprietors.
We are, therefore, called upon to examine the soundness of their premise and the correctness of the conclusions deduced. What, then, we first inquire, was ■the purpose, as indicated by the word “levee,” for which this tract was dedicated ? Are we confined to' the rather narrow definition which the plaintiffs would have us give to this word, and hold that it simply means a landing-place for boats and commerce carried on by river ? Necessarily must be added to this the right to pass over, across and along this tract for the hauling of such goods and passengers as should be there delivered by reason pf such commerce. This implies its use as a highway or street, at least to some extent. Would that use be limited to vehicles used for the loading and unloading river traffic, or does it not as well include the right of the general public to* use the same as a street for all purposes ? It is true, perhaps, that in the popular sense the more restricted meaning obtains, probably because of the fact that such tracts are most largely used in connection with water commerce, rather than because of an analytical examination of the question. It is equally true that it would greatly surprise the general public of cities where boats tie up at well-improved levees to be told that no one other than those who come and go with goods in promoting “commerce carried on by river,”' are permitted to traverse the same. It is clear that-we may not here give to this word the restricted meaning which plaintiffs’ definitition contemplates, for, besides the suggestions already made, such a restriction would make each of the streets whose eastern terminus is upon this tract a mere cul de sac. Nor would the proprietors of lots abutting the levee have any means of ingress or egress thereto. Primarily, the word “ levee ” has no such restricted meaning. The lexicographers tell us that it is derived from the same root as the word “lever,” and means a rise of ground ; specifically, “an embankment to prevent inundation, or the steep bank of a river,” and, used as a transitive verb, it is “to keep within a channel by means of levees.” The law dictionaries but reecho this definition and say : ‘ ‘ Levees are embankments to prevent the overflow of rivers.” (City of St. Paul v. Chicago & St. P. Ry. Co., 63 Minn. 330, 351, 63 N. W. 267, 65 N. W. 649, 68 N. W. 458, 34 L. R. A. 184; Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. 224; Coffin v. City of Portland, 27 Fed. [C. C.] 412; The City of New Orleans v. Morris, 3 Woods [C. C.] 115, Fed. Cas. No. 10,183 ; 2 Dill. Mun. Corp., 4th ed., § 649 ; City of Napa v. Howland, 87 Cal. 84, 88, 25 Pac. 247.)
It may well be argued, in the light of recent disastrous experience, that portions of the land in dispute may be needed and used in pursuance of the primary meaning of the term, and that the city, to guard itself from floods, will need to raise embankments thereon. We, therefore, certainly question the soundness of the plaintiffs’ major premise : that a levee is only a landing-place for boats. While a levee is a place for the landing of boats and commerce, it is much more than that, and were we to grant the abandonment of the disputed tract for that purpose we would not thereby grant that it was abandoned for all other purposes so as to revert.
Giving to the word “levee” the narrow construction contended for by plaintiffs, we proceed to inquire if the conclusion that there has been an abandonment and consequent reverter is warranted by the facts. In their brief the rule is stated, and we think correctly, as follows :
“Land dedicated to a particular.public purpose will revert to the dedicator when there has been a full and lawful abandonment of the use for which the dedication has been made, or when the dedication has spent its force by the use becoming impossible.”
That is, abandonment to cause a reverter is something more than a mere cessation of use. The fact that the use has become inconvenient or undesirable to the extent that it has ceased entirely will not constitute an abandonment on the part of the public so as to cause a reverter, and this even though such nonuser has extended through a long series of years.
In Wilgus v. Comm’rs of Miami Co., 54 Kan. 605, 38 Pac. 787, a jfiat of land dedicated as “Seminary square ” was held not to have been abandoned through a non-use of twenty-five years. A like rule was announced in Comm’rs of Wyandotte Co. v. Presbyterian Church, 30 Kan. 620, 1 Pac. 109, concerning a lot dedicated by the same plat that contains the land here in controversy, where non-use had continued for an equal or greater period of time.. In Forbes v. Board of Education, 7 Kan. App. 452, 53 Pac. 533, a block dedicated to the public use as “University square” was held not to be vacated after twenty-six years of nonuser. In City of Ashland v. The Chicago & Northwestern R. Co., 105 Wis. 398, 80 N. W. 1101, it was held :
“Mere non-use of a street for any period of time will not operate as an abandonment of rights conferred by a proper dedication, and, until the time arrives when the street is needed for. actual use, all persons in possession hold subject to such rights.”
In Coffin v. City of Portland, 27 Fed. (C. C.) 412, 416, 420, it was held :
“And when, as in this case, the dedication is unconditionally made to a public use, as a levee or landing-place, no formal acceptance of the same is necessary ; nor does the existence or continuance of the easement depend on the extent of the use or improvement of the premises, or that they are used or improved at all; and it is even doubtful if the same can be lost by the adverse occupation of the premises by private parties for any length of time. Second Dill. Mun. Corp.(3d ed.) § 675. •. . . Where the fact of dedication of a street or landing is in dispute, non-user is evidence, more or less cogent, according to circumstances, against a dedication. But where, as in this case, the dedication is admitted, the evidence of non-user is immaterial. The right to the use, once admitted, is not affected by it. Barclay v. Howell, 6 Pet. 505 (8 L. Ed. 477). Property dedicated to publiG use does not revert to the donor, unless, it may be, where the execution of the use becomes impossible; and if such property is appropriated to an unauthorized use, a court of equity will compel a specific execution of the trust, by restraining the parties engaged in the unlawful use or by causing the removal of obstructions or hindrances to the lawful one. Barclay v. Howell, 6 Pet. 507 (8 L. Ed. 477). See, also, 2 Dill. Mun. Corp. (3d ed.) §653.”
.In Archer v. Salinas City, 93 Cal. 43, 51, 28 Pac. 839, 16 L. R. A. 145, the rule was stated :
“Whenever the dedication is complete, the property thereby becomes public property, and the owner loses all control over it or right to its use. . . . The property dedicated has become public property, impressed with the use for which it was dedicated, and neither can the public divert it from that use, nor can it be lost .by adverse possession. Nor is the effect of such dedication impaired by any delay in the use of the land for which it was set apart. Such failure to make use of the land does not authorize the owner to resume possession. The public can thereafter appropriate the land to the use for which it was dedicated whenever convenience or necessity may suggest.”
In Parker v. City of St, Paul, 47 Minn. 317, 50 N. W. 247, the rule was stated :
“Moreover, streets, levees, and the like are often laid out on land acquired for or dedicated to such’ purposes with reference to future as well as present requirements, and therefore it is not legitimate to assume that the property has been abandoned merely because it has not yet been used by the public. It may also be safely laid down a.s sound, both upon reason and upon considerations of public policy, that until the time arrives when a street, levee, or the like is required for actual public use, and when the public authorities may be properly called upon to open or prepare it for such use, no mere non-user for any length of time, however great, will operate as an'’abandonment.”
This court, in Giffen v. City of Olathe, 44 Kan. 342, 350, 24 Pac. 474, quoted approvingly from the case of Town of Lakeview v. Le Bahn, 120 Ill. 92, 9 N. E. 269, as follows :
“Until the time arrives when any street or part of a street is required for actual public use, and when the public authorities may be properly called upon to open it for public use, no mere non-user of any length of time will operate as an abandonment of it, and all persons in possession of it will be presumed to hold subject to the paramount right of the public.”
The court further cites as supporting the same view a number of cases.
Very many more cases could be cited announcing the same doctrine'. Indeed, we hardly think from the plaintiffs’ argument that they claim that mere nonuser will ever constitute an abandonment, but that there must be coupled with such non-user the further fact that the use has ceased because it has become impossible. ' This we believe to be the rule of the authorities.
In Coffin v. City of Portland, 27 Fed. (C. C.) 412, 420, the rule was stated thus :
“Property dedicated to public use does not revert to the donor, unless, it may be, where the execution of the use becomes impossible.”
In Osage City v. Larkin, 40 Kan. 206, 19 Pac. 658, 2 L. R. A. 56, 10 Am. St. Rep. 186, it was held:
"An alley retains its character as an alley, although the lots on both sides thereof are owned by one person, and is so intersected by a railroad as to make it practically impassable.”
An extreme case is found in The City of Logansport et al. v. Shirk, 88 Ind. 563, where it was held that the construction of a canal through a street by the city suspends but does not destroy 'the easement for a street, and such an easement revives on the abatement óf the canal. Many cases are cited in support thereof.
Judge Dillon, in his work on Municipal Corporations, fourth edition, section 653, states the rule as follows :
"Property unconditionally dedicated to public use, or to a particular use, does not revert to the original owner except where the execution of the use becomes impossible. If the dedicated property be appropriated to.an unauthorized use, equity will cause the trust to be observed or the obstructions removed.”
There is nothing to be found in the evidence which goes to show that the use of the tract in question, even were it limited to a boat-landing, has become impossible ; indeed, the evidence shows to the contrary. As a matter of law, we know that the Missouri,river is a navigable stream. Vast sums of money have been expended by the general government for its improvement, and even though at the present but little, if any, commerce is being carried on over its waters, or during the immediate past has been, who shall say that the time may not come, possibly soon, when transportation conditions may so change that navigation may ' again be profitably resumed ? That such a possibility exists may at least serve to exercise a restraining influence upon .railroad rates. Certainly it cannot be said either that navigation upon tbe river has been permanently abandoned or that by the improvements of wharfage and ways upon the levee it may not again be usable as a landing.
That use is now being made of the levee by railroads, manufacturers and squatters counts for little. Such use, if unauthorized or unwarranted, could be prevented by proper action for that purpose. Certain it is that neither city nor county could give away the rights of the public in a tract of land dedicated to public use by authorizing its use for an unwarranted purpose.
We conclude that neither misuse nor non-use alone will be sufficient to constitute an abandonment of land dedicated to a public use so as to work as a reverter to the dedicators ; that non-use, to accomplish it, must have been the result of causes rendering use impossible, or at least so highly improbable' as closely to approach the impossible; that in this case no such condition was shown by plaintiffs’ evidence, even if we take the narrow view that the dedication was only for the purpose of affording a landing-place for boats and for commerce carried on by river. We are further of the opinion that this narrow view may not be sustained — that the dedication was for other purposes as well; and it may well be doubted that a reverter would necessarily follow the complete drying up of the Missouri river.
The judgment of the trial court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Atkinson, J. :
On August 4, 1902, Martin Stewart filed his petition in the district court of Wyandotte county against Willard E. Winner and the Board of Trustees of Park College, an educational institution located in Platte county, Missouri. No proceeding in error has been brought to this court from the judgment in favor of defendant Winner. The averments of plaintiff's petition, in so far as it relates to the board of trustees and in so far as is necessary for a full understanding of the facts, were substantially as follows :
On the 28th day of February, 1896, plaintiff, being then the owner and in possession of certain real estate in the county of Wyandotte, executed and delivered to the Board of Trustees of Park College his note for the sum of $20,000, bearing interest at the rate of eight per cent, per annum, and to secure the payment of the note he gave a mortgage on said property. Upon default in payment of the note the trustees foreclosed the mortgage. The sheriff sold the premises to the board of trustees for the sum of $25,165. The sale was confirmed and a certificate issued to the purchaser on December 3, 1900.
In his petition plaintiff further averred that frequently before the expiration of the eighteen months from the date of sale he went to the place of business of the board of trustees, in Missouri, with a certified check for the full amount of the judgment and interest thereon, with a view and for the purpose of redeeming the premises from the foreclosure sale ; that before each effort made by him to redeem he notified the board of trustees of the fact that he would call and make such redemption, and that upon each occasion they failed to be present; that after said period of redemption had expired, and on the 6th day of June, 1902, the sheriff executed and delivered to the board of trustees a deed for the property, and the same was filed for record on the 7th day of June, 1902.
Plaintiff averred his readiness and willingness to pay into the court the full amount of principal, interest, costs and taxes due the college upon redemption at any time the court should order that it be done. Plaintiff asked for a decree of conveyance upon the payment of the legal amount due to the clerk of said court; that said clerk deliver to plaintiff a deed to said premises, duly executed and acknowledged by-said defendant corporation, on the payment of said1 money, and for such other and further relief in the-premises as plaintiff, in justice and equity, should, be found entitled to receive.
Each of the defendants filed a demurrer, and the-court sustained them. Plaintiff elected to stand upon-his petition as to the board of trustees, and brings, the case to this court for review.
The only question in this case is whether the court, committed error in sustaining the demurrer. We-think not. The right to redeem and the mode of redemption of real estate, after sale by the sheriff upon execution, special or general, or order of sale, are-fixed by statute. (Laws 1893,ch.l09 ; Gen. Stat. 1901,. §§4927-4954.) Section 2 of said chapter 109 (Gen. Stat. 1901, § 4928) provides that the defendant owner-may redeem at any time within eighteen months from the date of sale at the amount for which the premises-sold, together with' interest, costs, and taxes. Section 14 (Gen. Stat. 1901, §4940) provides that the money to redeem shall be paid into the office of the clerk of the district court for the use of the person thereunto entitled, and the clerk shall give a receipt for the same, stating the purpose for which it is paid. Plaintiff in this case did not comply with the statutory provisions, and, in fact, made no effort to do so. We-have carefully examined the averments of plaintiff’s petition and find therein no grounds for equitable-relief, as claimed. (Rothwell v. Gettys, 11 Humph. [Tenn.] 135; Hyman et al. v. Bogue et al., 135 Ill. 9, 26 N. E. 40; Ex parte The Bank of Monroe, 7 Hill [N. Y.] 177, 42 Am. Dec. 61; Griffin v. Coffey, 50 Am. Dec. 519.)
The judgment of the court below is affirmed.
All the Justices concurring. | [
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Per Curiam:
The judgment in this case is reversed, on the authority of The State v. Estep, 66 Kan. 416, 71 Pac. 857. | [
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The opinion of the court was delivered by
Bue,CH, J. :
In an action for the foreclosure of a mechanic’s lien it was discovered that the land upon which the improvement had been erected had been misdescribed, and that the owner had been misnamed in the original lien statement. The district court permitted amendments to cure these, defects, and rendered judgment foreclosing the lien. This action of the court is complained of. It was, however, fully warranted by section 5121, General Statutes of 1901, which provides as follow’s:
“ In case of action brought, any lien statement may be amended by leave of the court in furtherance of justice as pleadings may be in any matter, except as to the amount claimed.”
The legislature could, without doubt, provide for the enforcement of a lien statement amended as to parties and as to property to the same extent that it could provide for the appropriation of the property by virtue of a lien in the first instance.
The judgment rendered, however, included an attorney’s fee of twenty-five dollars, allowed upon due proof under section 5125, General Statutes of 1901, which reads as follows :
“In any action brought by any artisan or day-laborer to enforce any lien under this act, where judgment be rendered for plaintiff, the plaintiff shall be entitled to recover a reasonable attorney’s fee to be fixéd by the court, which shall'be taxed as costs in the action.”
The constitution of the United States is the' supreme law of the land, and the judges in every state are bound thereby, anything in' the constitution or laws of their own state to the contrary notwithstanding. (U.' S.' Const., art. VI.) Section 1 of article XIV of the amendments to that constitution provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. The statute in question singles out property-owners who are charged with receiving from artisans or day-laborers labor going to the improvement of their property, by virtue of a contract made by themselves or through contractors employed by them, and mulcts them in damages if they should be unsuccessful in resisting a claimed lien therefor. Under the'statute such persons are subjected to a liability for attorney’s fees when owners of other classes of property and when other classes of persons employing artisans- and day-laborers are not subjected to such burden, and their contracts for labor are segregated from’ all other contracts and' separately classified as if' they possessed some distinctive attribute calling for the imposition of special legislative penalties for their enforcement.
Of course, the legislature may classify objects of legislation and it has a wide discretion in that respect, but classifications may not be made either arbitrarily or capriciously." There' must be differences in the elements and relations distinguished producing consequences justifying difference in treatment, and these differences must be such as by the very nature of the things considered to divide them into classes. Thus, a statute allowing the recovery of attorney’s fees in an action against a railroad company for damages.caused by its negligence in permitting the escape of fire is in the nature of a pólice regulation to prevent careless ness in the use of a dangerous element, and the consequent destruction of property. (Railroad Co. v. Matthews, 58 Kan. 447, 49 Pac. 602, aff. 174 U. S. 96, 19 Sup. Ct. 609, 43 L. Ed. 909.) The business of fire insurance has likewise assumed such a peculiar and special relation to the public welfare that the legislature is authorized to provide special penalties for breaches of contracts made in its prosecution. (Assurance Co. v. Bradford, 60 Kan. 82, 55 Pac. 335 ; Fid. Mut. Life Ass’n v. Mettler, 185 U. S. 308, 22 Sup. Ct. 662, 46 L. Ed. 922.)
But the homely and highly beneficial act of building or repairing some structure upon his premises, or otherwise, improving them, by any man, whether rich or poor, who possesses property, whether much or little', does not so stand out from his other ordinary and innocent employments, or so stand out from similar employments of other men, as naturally to distinguish it from them. There is absolutely nothing to indicate that such a person, or a contract for such a purpose, should be the subject of impositions not suffered by others. The duty to pay is not more vital to the welfare of the public in this case than it is between other persons and with respect to other obligations. The legislature could not have believed that claims of the character adverted to by this act were unconscionably resisted beyond all other debts, and no other legal reason is discoverable for such a hostile and discriminating law.
Under the constitution of the state of Kansas, artisan and owner, contractor and laborer, are each one possessed of equal and inalienable rights to life, liberty, and the pursuit of happiness. They all live under the same indiscriminating sunshine, breathe the same free air, venerate the same historical past, are imbued with the same patriotic ideals and look forward to equal shares in the common blessings of a higher civilization in a brighter future. The burden of the law upon them should be as equal and impartial as the law of gravitation, and yet, in the baldest and most arbitrary manner imaginable, this act
“singles out a certain class of debtors and punishes them when.for like delinquencies it punishes no others. They are not treated as other debtors, or equally with other debtors. They cannot appeal to the courts as other litigants under like conditions and with like protection. If litigation terminates adversely to them, they are mulcted in the attorney’s fees of the successful plaintiff; if it terminates in their favor, they recover no attorney’s fees. It is no sufficient answer to say that they are punished only when adjudged to be in the wrong. They do not enter the courts upon equal terms. They must pay attorney’s fees if wrong ; they do not recover any if right; while their adversaries recover if right.and pay nothing if wrong. In the suits, therefore, to which they are parties they are discriminated against and are not treated as others. They do not stand equal before the law. They do not receive its equal protection.” (Gulf, Colorado & Santa Fe R’y. v. Ellis, 165 U. S. 150, 153, 17 Sup. Ct. 255, 41 L. Ed. 666.)
There is, therefore, a perfectly manifest and utterly irreconcilable conflict between the statute and the constitution. The constitution is the direct mandate of the people themselves. The statute is an expression of the will of the legislature. Which shall this court obey ?
In the first case in the first volume of the reports of decisions made by this court it was assumed that a statute which clearly and beyond any substantial doubt Infringes the supreme law should be declared unconstitutional. The power to do so has since been exercised many times. There is no lawful or consci entious escape from its exercise in this case, and the statute in question is declared to-be unconstitutional and no warrant for the taxing of an attorney’s fee as a part of the costs in the court below.
In a;dissenting opinion in the case of In re Davis, 58 Kan. 368, 384, 49 Pac. 160, the writer discovered the following statement:
“It is now too late, for any effective purpose, to deny the right of the courts to sit in judgment upon acts of the legislature. Accumulated precedent has established such right beyond the questioning of one judge or even of many judges.' If, however, it were an open inquiry, I should have no hesitation in denying the existence of the jurisdiction assumed.”
This language refers to the right and power of courts to adjudge statutes conflicting with thé fundamental law to be unconstitutiónal, siiice that is the only right to sit in judgment upon the acts of the legislature which has been established, and the only power or jurisdiction which courts assume to have over acts of the legislature aside from the ordinary and unquestioned matter of interpretation.
Following the announcement quoted is this remarkable statement:
“No close student of the structure, history and philosophy of the government but will agree that the exercise of such power was not within'the design of the framers of either state or federal constitution. The question whether such power should be conferred by express provision was debated in the constitutional convention of 1787. Propositions to confer it were repeatedly brought forward and as often put' aside without decision. Finally,'the one introduced by Mr. Madison was put to a vote, and received the approval of Delaware, Maryland and Virginia only ; Mr. Dickr inson, during the course of the debate, epitomizing the objection to the scheme in the pithy observation that ‘the justiciary of Aragon became by degrees the lawgiver.’ It never thereafter, during the sessions of the convention, became a subject of discussion.” (Bancroft’s History of the.Gonstitution, vol. 2, ch. 10.)” .
Against the extravagance of this language may be opposed a statement somewhat rhetorical in form, but still of one -who has been accredited a close student of the structure, history and philosophy of government — Rufus Choate :
‘‘I do not know that I can point to one achievement in American statesmanship which can take rank for its consequences of good above that single decision of the supreme court, which adjudged that an act of the legislature contrary to the constitution is void, and that the judicial department is clothed with the power to ascertain the repugnancy, and pronounce the legal conclusion. That the framers of the constitution intended this to be so is certain ; but to have asserted it against Congress and the executive, to have vindicated it by that easy yet adamantine demonstration than which the reasonings of mathematics show nothing surer, to have inscribed this vast truth of conservatism upon the public mind, so that no demagogue, not in the last stage of intoxication, denies it — this is an achievement of statesmanship (of the judiciary) of which a thousand years may not exhaust or reveal all the good.” (Harvard Law School Address, July, 1845.)
Propositions to confer in express words the simple power to declare statutes unconstitutional were not put aside in the federal convention. The proposition of Madison, debated by Dickinson and defeated upon receiving the approval of Delaware, Maryland and Virginia only, was not such a proposition, and Bancroft does not so state. Bancroft’s text is as follows :
“A deeply seatéd dread of danger from hasty legislation pervaded the mind of the convention ; and: Mason, Madison and others persistently desired to vest in the supreme court a revisionary power over the acts of Congress, with an independent negative, or a negative in conjunction with the executive.” (2 Bancroft’s Hist. Const., ch. 10, p. 195.)
Madison’s motion was:
“All acts before they become laws should be submitted both to the executive and supreme judiciary departments, that if either of these should object, two-thirds of each house, if both should object, three-fourths of each house, should be necessary to overrule the objections and give to the acts the force of law.” (3 Doc. Hist. Const. 536.)
This proposition, as all others which had preceded it, allowed the judges to pass upon the wisdom, policy and expediency of legislative acts, and involved them in politics, parties, and all the business and circumstance of legislation. That proposition was debated and defeated. In the course of the debate upon that question Dickinson made the statement quoted, because impressed with a remark of Mercer that the judiciary ought to be separate from the legislature and. that he disapproved the doctrine that the judges as expositors of the constitution should have the authority to declare a law void. (3 Doc. Hist. Const. 537, 538.) Gouverneur Morris replied to Dickinson that he could not agree that the judiciary should be bound to say that a direct violation of the constitution was law. (3 Doc. Hist. Const. 538.) And the proceedings of the constitutional convention and of the state conventions held to consider its adoption may be searched in vain for any expression of dissent from the view of Morris, except the two just referred to.
On the other hand, on June 4, when debating in the federal convention the subject of a council of revision, Elbridge Gerry
“doubts whether the judiciary ought to form a part- of it, as they will have a sufficient check against encroachments on their ,own department by their exposition of the laws, which involved a power of deciding on their constitutionality. In some states the judges had actually set aside laws as being against the constitution. This was done, too, with general approbation. It was quite foreign from the nature of the office to make them judges of the policy of public measures.” (8 Doc. Hist. Const. 54.)
On July 17, when considering a proposition to give a congressional negation to state laws,
‘‘Mr. Sherman thought it unnecessary, as the courts of the states would not considér as valid any law contravening the authority of the Union, and which the legislature would wish to be negatived.” (3 Doc. Hist. Const. 351.)
And —
“Mr. Gouverneur Morris was more and more opposed to the negative. ... A law that ought to be negatived will be set aside in the judiciary department and, if that security should fail, may be repealed by a national law.” (3 Doc. Hist. Const. 353.)
On July 21 James Wilson renewed the proposition to associate the judiciary with the executive in the revisionary power, saying :
“The judiciary ought to have an opportunity of remonstrating against projected encroachments on the people as well as on themselves. It had been said that the judges, as expositors of the laws, would have an opportunity of defending their constitutional rights. There was weight in this observation; but this power of the judges did not go far enough. Laws may be unjust, may be unwise, may be dangerous, may be destructive, and yet may not be so unconstitutional as to justify the judges in refusing to give them effect.” (3 Doc. Hist. Const. 390.)
On the same day Luther Martin
“considered the association of the judges with the executive as a dangerous innovation, as well as one which could not produce' the particular advantage expected from it.' A knowledge of mankind and of legislative affairs cannot be presumed to belong in a higher degree to the judges than to the législature. And as to the constitutionality of the laws, that point will come before the judges in their proper official character. In this character they have a negative on the laws. Join them with the executive in the revision and they will have adouble negative.” (8 Doc. Hist. Const. 895.)
And on that day George Mason observed that
“it had been said that if the judges were joined in this check on the laws they would have a double negative, since in their expository capacity of judges they would have one negative. He would reply that in this capacity they would impede in one" case only the operation of laws. They could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as judge's to give it a free course. .He wished the further use to be made of the judges, of giving aid in preventing every improper law.” (3 Doc. Hist. Const. 396.)
In the convention of North Carolina, Richardson Davie, a delegate to the federal convention, said :
“Without a judiciary the injunctions of the constitution may be disobeyed, and the positive regulations neglected or contravened, . . . and the constitution might be violated with impunity, if there were no power in the general government to correct and counteract such laws. This great object can only be safely and completely obtained by the instrumentality of the federal judiciary.” (4 Elliot’s Debates, 156, 157.)
In the convention of Pennsylvania, James Wilson said :
“If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void ; for the power of the constitution predominates. Anything, therefore, that shall be enacted by Congress contrary thereto, Will not have the force of law.” (2 Elliot’s Debates, 489.)
In the Virginia convention, Edmund Randolph said that if .Congress wished to aggrandize themselves by oppressing the people, the judiciary must first be corrupted. And Patrick Henry spoke as follows :
“The honorable gentlemen did our judiciary honor in saying that they had firmness to counteract the legislature in some cases. Yes, sir; our judges opposed the acts of the legislature. We have this landmark to guide us.' They had fortitude to declare that they were the judiciary, and would oppose unconstitutional acts. Are you sure your federal judiciary will act thus ? Is that judiciary as well constructed and as independent of the other branches as our state judiciary? Where are your landmarks in this government ? ' I will be bold to say you cannot find any in it. I take it-as the highest encomium on this country that the acts of the legislature, if unconstitutional, are liable to be opposed by the judiciary.” (3 Elliot’s Debates, 324, 325.)
In this convention, fifteen'years before the decision in Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60, John Marshall spoke as follows :
“Has the government of the United States power to make laws on every subject ? Does he understand it so ? Can they make laws affecting the mode of transferring property, or contracts, or claims, between citizens of the same state ? Can they go beyond the delegated powers ? If they were to make a law not warranted by any of the powers enumerated, it w.ould be considered by the judges as an infringement of the constitution which they 'are to guard. They would not consider such a law as coming under'"their jurisdiction. They would declare it void.” (MagrúdeNsO Life of John Marshall, 83.) " ; "
Alexander Hamilton has been esteemed to be some,-, thing of a student of the structure and philosophy of • this government, and, as a member of the federal con1-vention, had some share in framing the- constitution of the United States. In order to 'induce the people > of the United States to adopt that constitution, he gave, to the world upon June 17 and 20, 1788, the paper corn-, stituting No. 78 of The Federalist, in which the following discussion of this subject occurs : , ,
“The complete independence of the courts of justice is peculiarly essential in a limited constitution. - By a limited constitution, I understand one which contains certain specified exceptions to the legislative authority ; such, for instance, as that it shall pass no : bills of attainder, no ex post facto laws, and the like. ■ Limitations of this kind can be preserved in practice no other way than through the medium of the courts . of justice, whose duty it must be to declare all acts ■ contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
“Some perplexity respecting the right of the courts! to pronounce legislative acts void, because contrary to the constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void must necessarily be superior to the one whose acts . may be declared void. As this doctrine is of great , importance in all the American constitutions, a brief , discussion of the grounds on which it rests cannot be unacceptable. >
“There .is no position-which. depends on clearer, principles than that every act of a delegated author-, i ity, .contrary, to the. tenor of the com mission,, under,-, which it is exercised, is void. No legislative act, therefore, contrary to the constitution can "be-valid,.-. To deny this, would be to affirm, that the deputydss greater than his principal; that the servapt is above' his master; that the representatives of the people áre superior to the people themselves; that- men-, acting?by virtue of powers, may do not - only what-.their; powers do not authorize, but what they forbid., • f
“If it be said that the legislative body are'themselves the constitutional judges of their' own powers,, and that the construction they put upon them' i^'ecfh^ elusive upon the other departments, it' ináy be) k’n-swered, that this cannot be the natural 'presumption;where it is not to be collected from any particular provisions in the constitution. It is not otherwise to; be supposed that the constitution could intend to enT’: able the representatives of the people to substitute1 their will to that of their constituents. It is far mb're' rational to suppose that the courts were designed to; be an intermediate body between the people and the-legislature, in order, among other things, to keep the* latter within the limits assigned to their authority.? The interpretation of the laws is the proper and pecul-; iar province of the courts. A constitution is, in fact,., and must be, regarded by the judges as a fundamental law. It must therefore belong to them to ascertains its meaning, as well as the meaning of any particular* act proceeding from the legislative body. If there-1 should happen to be an irreconcilable variance be'd tween the two, that which has the superior obligation" and validity ought, of course, to be preferred ; in otheb words, the constitution ought to be preferred to the-) statute, the intention of the. people.to the intention of their agents.
“Nor does the conclusion by any means suppose* a? superiority of the judicial to the legislative, powers It only supposes that the power of the people;.is superior to both ; and that where the will of - the ■ legislar-, ture, declared in its statutes-, stands in opposition tp; that of the people, declared in the constitution,., the judges ought to be governed by the latter.'rather thap3 the former. They ought to regulate, their. decisions, by the fundamental laws rather , ^han by-.thp sp..which. are not fundamental.” (The Federalist, Hamilton ■edition, -576-578.) '
Doubtless some consideration of these, among other facts, led Henry Hitchcock, LL. D., a learned lawyer and an accomplished scholar, to say to the students of Michigan University:
“The doctrine that it is the right and duty of the eourts =to declare void a law repugnant to the constitution, lies at the very root of our system of government.” (Const. Hist, as seen in American Law, 77.)
And in an able and exaustive discussion of this subject, under the title “The Legislature and the Courts,” judge Charles B. Elliott says :
“But the change in the form of government from a monarchy to a republic rendered necessary a change in theory as to the’ location of sovereignty. The absolute authority of parliament as sovereign was now transferred to the people, and the restraints which applied to the executive in the English system became applicable to the new government as a whole. . . .
, “The .change in location of the sovereignty resulted in raising the judiciary to the position of a coordinate department of government, and the application of the established.principles of the common law secured to it a controlling influence over the other departments. The interpretation of the supreme law, being a judicial act, belonged to the judiciary.” (¿Political Science Quarterly, June, 1890, 229, 280.)
<0. Ellis Stevens,LL.D.,D.C.L.,in his book, “ Sources of the Constitution of the United States,” at page 3.90, says:
'“In deciding constitutional questions, the supreme «burfc interprets the law in accordance with principles -that have long governed the courts of England. For when an English judge finds conflict between an act of parliament and a judicial decision, he sets aside the decision, as of an authority inferior to that of the act; and if two parliamentary acts conflict, the ear lier is set aside as superseded by the later one — th& court interpreting the law, simply by determining what is law as distinguished from what is not. The range of this English usage was somewhat amplified in the colonies, owing to the fact, that instead of par^ liament, the colonial courts had legislatures to. deal with, which acted, in most instances, under written charters limiting their powers — as also under the gen-, eral domination of the home government. The colonial judiciary did not hesitate to adjudge a local statute invalid, if its enactment could be shown to have ex« ceeded powers conferred by charter — and the privy council, in the capacity of a supreme court for thé colonies, decided in like manner conflicts between laws. "When state constitutions succeeded to the charters, the process was continued by the state courts in cases showing conflict between statutes and the new constitutions judicially interpreted. The national govr ernment, with a constitution of its o wn, created' an element of superior law, in conflict with which not only state but national enactments of lesser authority ar© nullified. All that the judiciary does in England, and all that it does in the states, and in the courts of the United States, is to uphold the authority of what it-decides to be the higher law, as against all lesser laws or judicial decisions. What therefore has been supposed to be the most unique feature of the American supreme court is really only another adaptation from the past, and rests upon colonial and English precedents.”
For the famous privy council cases, see Thayer’s Cases on Constitutional Law.
Referring to the matter of precedents for the decision in the case of Marbury v. Madison, Andrew McFarland Davis says :
“There was, however, in the records of the superior court of judicature of the Massachusetts Bay, a-decision rendered in 1738 and repeated in 1739^ in which the court refused to enforce an order issued by his majesty in council, because the powers of the* éóurt derived through the'charter and the laws passed ito marry' the same into effect were in the judgment 'pi'‘the court inadequate for that purpose. An analysis b'f :the two cases will disclose a certain parallelism. The ¡supreme court of the United States, interpreting Ui'd-constitution, the source of its authority, declared -fth'at'it could not in the exercise of original jurisdiction issue writs of mandamus, notwithstanding the Action ;of congress, because no such power was conferred upon the court by that instrument. The superior' court of judicature, interpreting in a similar way the province charter, and the laws through -•which they derived their powers, asserted, that'notwithstanding the explicit instructions received from his majesty in council, they were unable to carry out the: royal order, because adequate powers were not fconférred upon the court.” (The case of Frost v. Leighton, 2 Am. Hist. Rev. Jan. 1897, 229.)
. : .IJrqrn the time of the separation of the colonies from ithe paother country to the time of the federal convention, the- power under discussion had been brought to jpublie notice in seven cases, arising in five states'. In ith'e'.cáse of' Holmes v. Walton, the question of constitutionality was squarely raised • before the supreme Spur-t of -New Jersey, November 11, 1779, and squarely decided September- 7, 1780. The decision, though íhéetíng with some opposition, was ratified by a legislature fresh from the people. Brearly, the chief gustiee-'who rendered the decision, Patterson, the attorney-general, and Livingston, the governor of the state,;--all-.sat in the federal convention. See American Historical Review, volume 4, page 456, for-a careful study of this precedent.
.: ..After referring to this case in his contribution, “Constitutional-Law,” to the volume, “Two Centuries’ ■€rro%¡th of: American Law,” 24, 26, Doctor Baldwin, •bí Yale'University, says :
“Similar decisions followed in other states; some in.those- where .royal charters .were still- regarded as in .substance-.an, expression, of the .f undamental daw,;. and pthers wherp these.:haü-.givenp-lac.e to formal constitutions emanating from the people or those who-.assumed -,tjpr, represent them, -.'-In fine,, of-,--thesej' the .articles of .ppnfederatipn,.. under which .the. United .States .were then organized,, .were- thus. upheld as of paramount authority... . Jefferson-was among those who, at the .time, seems to have approved this doctrine. • . .. .
. “The.general , approbation with which, .as Gerry •said, the position, that the judiciary were clothed with po.wer to set aside .unconstitutional legislation was .from the.first received-,, was largely due to the spirit of rey.er.enpe;.for law which, has always marked the American people, but gained new strength when they began to make and administer law for themselves, in ehiireihdépehdene.é.of British control.”'" '
"!‘ ín 19 AmeriCan Law Review, 184, a critic of the putter under'discussion,- Mr.'William M. Meigs, says :
“But it appeals that,the step had already been made, and'‘that the' doctriné' was, at or before the adoption of the present constitution, almost a recognized pri'n-piplp in our country. - The instances already cited go .-far to, establish this ■; but, when-it. is seen how-opinions .teethe same-effect ^continued to- be expressed and en-fEQrced,.and 'alnaost-universally without serious opposition, we-,think there cam be no.&o'ubt. of it.” .
- Tn 1893 appeared a volume of moie than 400 pá¿es., by Brinton Coxe, of the Philadelphia har, 'entitled V: Judicial:Power,' .and Unconstitutional- Legislation,” •im-WhiCh he describes1 his work.as follows-:: '
--“The-chief purpose of the ..writer is to show that the constitution of.-thelUnited States contains express texts providing’ for. judicial -competency-to decide .questioned legislation to be constitutional or unconstitutional and to hold ft "valid or, void accordingly,. ,
■ “Subordinate' to'this'chief'purpose aré'fo.ur'others. The first of/these subordinate purposes is toshow that the framers of the constitution, according to the ex tant records of their debates and proceedings at Philadelphia, in 1787, expressly intended to provide for the said judicial competency as to such unconstitutional legislation.
“The second subordinate purpose is to point out and comment upon certain texts in federal documents older than the constitution, which are historical antecedents of the constitutional texts concerned.
“The third subordinate purpose is to examine the history of the relation of judicial power to unconstitutional legislation in certain of the states before and during the confederation, and to show that the judicial competency under discussion is an American institution older than the constitution of the United States.” (Pages 1, 2.)
Mr. Austin Scott, in the American Historical Review, volume 4, page 456, says of this book that it speaks with all but final authority upon its subject-matter.
In the opinion referred to, the following statement was made :
“In the early days of the' republic, an assumption by the courts of the right to invalidate acts of the legislature was bitterly resented. The judges of Rhode Island and of Ohio were impeached for assuming such power, and those of Virginia resigned under a storm of censure on account of like conduct.” (In re Davis, 58 Kan. 385, 49 Pac. 165.)
It is true that in some instances particular decisions of courts led to factional resentment, but the statement quoted is quite misleading. The great democrat, Patrick Henry, had correctly represented the people of Virginia in the speech quoted above. The matter of public sentiment nowise entered into the resignation of judges shown in Case of the Judges, 4 Call (Va.), 135, 142, and the true attitude of the judges themselves is shown in the following extract from the report of those cases :
“On this view of the subject, the following alternatives presented themselves to the court: Either to decide those questions; or resign their offices. The latter would have been their choice, if they could have considered the questions as affecting their individual interests only; but viewing them as relating to their office, and finding themselves called by their country to sustain an important post as one of the three pillars on which the great fabric of government was erected, they judged that a resignation would subject them to the reproach of deserting their station, and betraying the sacred interests of society entrusted with them ; and., on that ground, found themselves obliged to decide, however their delicacy might be wounded, or whatever temporary inconveniences might ensue, and in that decision to declare that the constitution and the act are in opposition and cannot exist together, and that the former must control the operation of the laMer. If this opinion, declaring the supremacy of the constitution, needed any support, it may be found in the opinion of the legislature themselves, who have, in several instances, considered the constitution as prescribing limits to their powers as well as to those of the other departments of government.” (4 Call, 142, May, 1788.)
In Ohio, impeachment proceedings were brought against two of the judges, but upon the trial they were acquitted. In Kentucky, an effort to remove the judges failed. In Rhode Island, the judges were cited before the legislature to render reasons for their conduct, but no proceedings in impeachment were initiated.
It must be remembered, however, that in the early days of the republic an armed rabble actually shut up the courts of Massachusetts through nothing more than an ignorant and rebellious malcontentedness; jandAhati ^lieTo,; tbe., bjttgrness of j»aytizg,íh>pa%oo.t;in Jefferson’s administration, ,-.demanded. a,,wiiciimte.:.,the senate, of d,he-,JJnited $tfitpj8, impeaphed.an, insane ..federal judge lUpqn arparía! eyidencp-,; without- ahearing, ;andj.without even-.’an: attorney to-.act in his'behalf. ■These,-however, are -not pointed but as-among the "coffstructrve constitutional movements 'of . oür coun-dry.,, in every state in'the Ünióii the people .ultimately-.-approved the-power the judges claimed. .-After the,dig covery of wheat the American people refused to feed on 'acorns. • ■ / ■ ■
' , The'references given above by no' means exhaust -the literature' .upon this great subject, but it seemed do'¡the writer..to be due to those .who use the. .Nansas .reports that at least some witnesses-be .called to show .that- the dogmatic-dissenting dissertation referred to "does not' contain - the' final word upon' the' matter'- of 'which it treats’.' " ;
', !As late as April, 1901, Mr! Justice Brewer deemed fit proper, in .the case of Fairbank v. United States, 181 U. S. 283, 21 Sup. Ct. 648, 45 L. Ed. 862, to. quote 'again from.'the.often-quoted language of Chief Justice Marshall in Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60, as follows :
j'-n '«‘'The eonstitu'tibn is either A superior paramount taw, unchangeable iby'.ordinary paeans,1 or it is-on a levelvWi.th ..ordinary legislative’ acts, .and, like other (a,cfg.,-is .alterable -when-the .legislature - shall please to Walter 'it.'
" '“‘If thb former part of the alternative be true, then A legislative act contrary to the constitution is not law'; if the latter part be true, then written constitutions are $bsurd:attempts,.,on -the.part ;of dhe people,..to limit a power; in its own,nature,illimitable.. , .- , ,.. •.
, Certainly fill those who have-, framed Written constitutions cohtóinpíate’ them as forming the fundá-'nfentaí and paramount law of' the nation, and consé- quently the theory' of every such government must be that an act of the legislature repugnant to the con.stitution,is voidVTA . :■ •• '■ •• .T
. “This theory is essentially attached to a written constitution, and.is-..cansequently .to be considered, by this court, as one of the fundamental principles of our society. . . .. ‘ '' '._
“It is emphatiCally/the'province' and duty of'the judicial department'to say what the law.is., Those /who'apply the rulé to particular cases must of necessity expound and interpret that rule. If two laws conflict with each-other, the. courts must decide on ■the operation of each.
- ■ “So if a law be-in opposition to the constitution, if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution, or conformably to -the'constitution,' disregarding the •law, the court must- determine which of- these conflicting'rules governs ihc case. This is of ’the very 'eásénce of judicial duty.
“If, then, the courts are to regard the constitution, and the-Constitution-is sflp'erior to any ordinary-act of ..the legislature,', the ..constitution, and not' such, ordinary act, must govern the case to which/they both apply. ...
' The particular, phraseology of. the constitution of the United States confirms and strengthens the fjrip..-ciple, supposed to be essential tó all written constitution's, that-'a- law repugnant to the constitution is void, and that courts as well as other departments are bound by that instrument.”
The district- court"is directed' tcCmodify its1, judgment by striking :out Jthe sum of: twenty-five dollars ■from the-taxed-costs";-u The judgment as modified., is affirmed. The.costs:imth-ie court', are. divided! • „•••.
Nil -the- Justices1 concurring. ■ | [
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Per G-uriam:
This proceeding involves the validity of the title to real estate asserted under tax deeds which have been recorded more than five years and which have been upheld by a prior judgment. It is contended by plaintiffs in error that the deeds are so defective upon their face that they are not sufficient to set the statute of limitations in operation, and that the former judgment is void.
Among the matters relied upon as making the deeds void are the following: The deeds recite the payment by the holder of the certificates on which they are based of the subsequent taxes for three successive years; and show the aggregate amount paid but do not show the amount paid for each year; the amount recited in the deeds as the consideration, preceding the words “taxes, costs and interest due on said land for the years,” etc., is the sum of the face of the amounts paid to the county treasurer, without the addition of interest; the words “an adjourned sale of,” included in the statutory form of a tax deed, with the obvious purpose that they should not be used except when appropriate, were retained. None of these defects is sufficient to prevent the statute from running in favor of the deeds. (Morrill v. Douglass, 14 Kan. 293, 301; Harris v. Curran, 32 id. 580, 4 Pac. 1044; Martin v. Garrett, 49 id. 131, 140, 30 Pac. 168.)
A further claim is based upon the supposition that the word “not” was omitted from the recitals of the deeds relative to redemption not having been made. The word, however, appears in the record. It is true that it is interlined in pencil, but so are other obv- as clerical errors. No attack has been made upon the truth of the record thus corrected. The deeds being good upon their face, and having been of record five years without an attack having been made upon them, it is unnecessary to consider the questions presented regarding the former judgment upholding them.
The judgment is affirmed. | [
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The opinion of the court was delivered by
MasoN, J.:
Blanche Boies was convicted of the offense, commonly known as malicious trespass, defined in section 107 of the crimes act (Gen. Stat. 1901., §2100), and appeals. This section reads :
“Every person who. shall wilfully, unlawfully and maliciously break, destroy or injure the door or1 window of any dwelling-house, shop, store or other house or building, or sever therefrom or from any gate, fence or enclosure, or any part thereof, any material of which it is formed, or sever from the freehold any produce thereof, or anything attached thereto, or shall pull down, injure or destroy any gate, post, railing or fence, or any part thereof, or cut down, lop, girdle or.otherwise injure or destroy any fruit or ornamental or shade tree, being the property of another, shall on conviction be adjudged guilty of a misdemeanor.’'
The information charged:
“That Blanche Boies, at the county of Shawnee, in the state of Kansas aforesaid, and within the jurisdiction of this court, on the 14th day of February, a.d. 1903, did then and there wilfully, unlawfully and maliciously break, destroy and injure the doors and windows to a certain building of one Sophia Hogeboom and in the possession of H. A. Uterman, the said building being used as a cigar store of H. A. Uter-man, located at the place and number commonly called number 833 Kansas avenue street, city of Topeka, county and state aforesaid, being lot number 285 on Kansas avenue street in said city.”
The evidence of the state showed that defendant had broken with an ax the plate glass in the doors and windows of the front room on the ground floor of the building described in the information. In behalf of the defendant, an offer was made to show that the. premises had been for some time in use as a place where intoxicating liquors were sold in violation of law, without molestation from the officers or others, and that this fact was known to the defendant. This offer was made not for the purpose of justifying the act, but as tending to contradict the allegation that it was malicious. The offer was refused. Defendant also asked and was denied an instruction that she could not be convicted if she believed at the time of the act complained of that the premises were used as a place where intoxicating liquors were sold in violation of law and acted with the purpose to interrupt, such violation, her design and motive being directed against such illegal business, she having no ill will .against the owner or possessor of the property, or design to destroy property merely for the purpose of its destruction.
By these means and in other ways the defendant raises a question concerning the meaning to be given to the word “malicious” in the statute quoted. As ordinarily employed in criminal statutes it is the equivalent of “wrongfully,-intentionally, and without just caúse or excuse.” But as used in many statutes directed against the unlawful destruction of property, it is held to have a restricted meaning peculiar to such statutes, implying that the act to which it relates must have resulted from actual ill will or revenge. The state contends for the former construction ; the defendant, for the latter. This is the sole issue presented by the appeal. If the former construction be adopted the conviction must be upheld ; if the latter, it must be set aside.
The special meaning noted had its origin in England in prosecutions under what is known as the “black act” (9 Geo. I, ch. 22), enacted in 1722, so called because it was designed to repress the depredations of bands of marauders calling themselves “blacks,” some of them being disguised by blacking their faces. The act provided:
‘ ‘ That if any person or persons . . . shall unlawfully and maliciously kill, maim or wound any cattle, or cut down or otherwise destroy any trees planted in any avenue, or growing in any garden, orchard or plantation, for ornament, shelter or profit, . every person so offending, being thereof lawfully convicted, shall be adjudged guilty of felony, and shall suffer death as in cases of felony, without benefit of clergy.”
It was held that, in prosecutions under this act for injuries to cattle, “in order to bring an offender within this law, the malice must be directed against the' owner of the cattle, and not merely against the animal itself.” (2 East’s Pleas of the Crown, 1072.) Mr. Bishop, in his work on Statutory Crimes (§433), says that he has not been able to discern the reason for this holding in the opinions of the English courts. East (page 1071) attributed it to the language of the preamble of the act. This recited that “several ill-designing and disorderly persons have of late associated themselves under the name of blacks,” etc. In this he merely adopted a conclusion he had already reached with more plausibility in the case of another statute, of which he says (page 1063) :
. “ The offense herein described seems, by the preamble to be pointed at such as commit it from a motive of malice to the owner of the property ; for it recites that ‘malicious and envious persons, being men of evil and perverse dispositions,’ etc., and minding the hurt, undoing and impoverishment of true and faithful subjects, have of late invented a new, damnable kind of vice, etc., and damnifying of the king’s true subjects, etc., in committing such and such offenses.”
In Brown v. The State, 26 Ohio St. 176, it was suggested that the peculiar construction of the language of the “black act” was adopted because of the disproportionate severity of the punishment, the judges naturally inclining to an interpretation that would “tend to save the life of the defendant. Whatever the reason for the rule, it became the settled law of England in cases arising under that act and later enactments of the same general character. In the United States most statutes prescribing a penalty for the malicious destruction of property are sufficiently like -those of England to warrant the inference that they were modeled upon them, and for this reason they have generally, but not always, been given the same •construction. (2 Bish. Cr. Law, §996, note 10; 19 A. & E. Encycl. of L., 2d ed., 641, 646; note to State v. Robinson, 32 Am. Dec. 661, 666; Nutt v. The State, 19 Tex. 340; State v. Gilligan, 23 R. I. 400, 50 Atl. 844.)
Upon the considerations thus far presented, the issue might be resolved in favor of the defendant by holding that our statute was adopted directly or indirectly from England, after it had received the construction for which defendant contends, and that therefore the court is bound to accept such construction ; ór in favor of the state, by holding that the Kansas statute is not só closely related to those of England as to make the English decisions controlling, and that such decisions ought not to be followed because based on reasons that no longer exist, even if they were originally sufficient. But it is not necessary to choose between these conflicting theories, either of -which might be supported by plausible argument. Tbe section of the statute already quoted must be interpreted in the light of another section (Grimes Act, §112; Gen. Stat. 1901,' § 2105), reading as follows :
‘ ‘ Every punishment and forfeiture imposed on any person maliciously committing any offense prohibited by the provisions of either of the last eight preceding sections shall equally apply and be in force, whether the offense shall be committed from malice conceived against the owner of the property, in respect to which' it shall be committed, or otherwise.”
This section originated in England in 1827, as part of an act consolidating and amending the laws relating to malicious injuries to property. (7 and 8 Geo. IV, ch. 80, § 25.) It was adopted by Missouri from England in 1885, and by Kansas from Missouri in 1855. It was manifestly designed for the very purpose of changing the earlier English rule already discussed. Its effect, upon first consideration, giving full force to its express terms, seems to be to do away altogether with the exceptional meaning of the word “malicious” and to-restore to it the general meaning given it in other statutes. But it is argued in behalf of-appellant that-the words “or otherwise,” as used in this section, are equivalent to “or against some other person,” the effect of the change being to relieve the prosecution from proving malice against the' owner, but not from proving malice against some person. The whole matter to be determined narrows down to the question whether this contention is sound.
The decisions in this country throw little light on the question. The appellant cites State v. Underwood, 37 Mo. 225, and State of Missouri v. Graham, 46 id. 490. In the Underwood case the defendant was charged with maliciously pulling down a house belonging to one' Wood. He offered to show that he acted on au thority derived from Wood’s wife, who had occupied it for some months alone. This offer was rejected and the supreme court held the rejection error, because under the circumstances the defendant might innocently have supposed that his authority was sufficient. In the Graham case the defendant was charged with maliciously killing a hog belonging to one Huskey. He offered to show acts tending to prove that-he had authority to kill other hogs and killed Huskey’s by mistake. The offer was rejected because the acts sought to be shown took place after the killing. The supreme court held the rejection error, saying that it was obvious that if defendant was simply pursuing his authority and killing what he supposed to be the hogs covered by it he was guilty of no offense. Neither case mentions the section of the statute now under consideration ; nor does either attribute to the word “malicious” any other than its general meaning. The appellee cites State v. Hambleton, 22 Mo. 452, which merely decides that in an indictment for the malicious killing of an animal it is not necessary to charge malice against the owner.' But the opinion in the latter case cites with approval the cases of Regina v. Tivey, 1 C. & K. 704 (Den. C. 0. 64), to which further reference will be made later, and Rex v. Salmon, Russ. & Ry. C. C. 26, decided in 1802, which held that under an indictment for maliciously setting fire to a haystack it was no defense to show that the prisoner had no ill will toward the owner, the facts of the case showing malice toward another person. Our attention has been directed to no other American case that arose under a statute having a provision similar to that under- discussion.
The many cases arising in England prior to 1827, and in this country in jurisdictions where the English rule as it existed prior to that time has not been changed by statute, manifestly have no bearing on the question here involved. The earliest reported English case arising under the new statute appears to be Regina v. Tivey, supra, decided in 1844. Tivey was indicted for having maliciously wounded a mare. No-malice was shown toward any one. It was argued for the prisoner that malice must be shown toward the owner, but the argument was based upon a claim that-the section corresponding to section 112 of our crimes act had been repealed. For the prosecution it was argued that under that section malice against the owner need not be shown, or, if the section were repealed, that general malice was sufficient. The point was reserved for the consideration of the fifteen judges, who-held the conviction was right. The claim.that the section had been repealed was evidently not well founded,, so that the ruling was plainly made under the section referred to. While the discussion was in terms directed to the question whether or not it was necessary to prove malice against the owner, this resulted naturally from the fact that under the circumstances of the case there could have been no malice against any other person. The real question was whether it was necessary to show malice against any person, since it was-expressly stated that no malice against any one was-shown.
In The Queen v. Pembliton, L. R. 2 C.C. 119, the defendant had been fighting with persons in the street- and threw a stone at them which struck and broke a plate-glass window. The jury returned a verdict of guilty, but found that he did not intend to break the window. On review the conviction was set aside. The chief justice, Lord Coleridge, said that the expression “or otherwise,” in the provision making it. immaterial whether the offense had been committed from malice against the owner of the property or otherwise, meant from malice against the owner or some one not the owner. But he added :
“It seems to me that what is intended by the statute is 'a wilful doing of an intentional act. Without saying that if the case had been left to them in a different way the conviction could not have been supported, if, on these facts, the jury had come to a conclusion that the prisoner was reckless- of the consequence of his act, and might reasonably have expected that it would result in breaking the window, it is sufficient to say that the jury have expressly found the contrary.”
Another judge, .Blackburn, said :
‘ ‘ Here the statute says that the act must be unlawful and malicious, and malice may be defined to be ‘where any person wilfully does an act injurious to another without lawful excuse.’ Can this man be considered, on the case submitted to us, as having wilfully broken a pane of glass? The jury might perhaps have found on this evidence that the act was malicious, because they might have found that the prisoner knew that the natural consequence of his act would be to break the glass, and although that was not his wish, yet that he was reckless whether he did it or not; but the jury have not so found, and I think it is impossible to say in this case that the prisoner- has maliciously done an act which he did not intend to do.”
A third judge, Lush, said :
“On these findings we have no alternative. The jury might have found otherwise, but taking this finding I cannot say that there was an intent, either actual or constructive, and ‘malicious’ certainly must be taken to imply an intention, either actual or constructive.”
The two remaining judges concurred in the result but made no statement of reasons. The effect of the reasoning given, notwithstanding the remark of the chief justice, seems to be that malice against an individual, or what is called actual malice, need not be shown. In The Queen v. Welch, 1 Q. B. D. 23, decided in 1875, the prisoner was convicted upon a charge of maliciously killing a mare. There was no evidence that he was actuated by ill will toward the owner of the mare or spite toward the mare, or by any motive except the gratification of his own depraved taste. It was held on review, following The Queen v. Pembliton, supra, that there was malice sufficient to sustain the conviction.
Upon the authority of these decisions, it is said in the American and English Encyclopedia of Law (2d ed., vol. 19, p. 643, note 1) :
“Under the express provisions of the later English statutes it is immaterial whether or not the offense is committed from malice against the owner of the property ; the wilful doing of an intentional act is sufficient to warrant a conviction.”
We therefore conclude that under the authorities the effect of section 112 of the crimes act is to take from the word “malicious” the specific meaning that had been attributed to it in laws against the destruction of property and restore to it the usual sense in which it is used in criminal statutes. We also approve this view upon principle. Prior to the English act of 1827 the phrase “malice against the owner” seems to have been used by the courts and writers even more often in contradistinction to malice against the property than in contradistinction to malice against other persons, and the fair and natural inference is that both distinctions were in view when the statute was passed, making the malice sufficient whether conceived against the owner “or otherwise.”
It follows that there was no error in the instruction complained of and that the evidence offered and re-' jected had no tendency to establish a valid defense.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J. :
Thomas B. Price owned eighty acres of farming land, which he and his wife, Clara, occupied as a homestead. Their children had all arrived at the age of majority and lived in homes of their own. While thus occupying the land,.Price died, and his wife continued to occupy' it as her home stead. A judgment had been rendered against Price in favor of plaintiffs in error, and after Ms death they sought to subject the land in question to the payment •of this judgment. The question is, whether or not this can be done ; whether the constitutional provision relative to homestead exemption protects this land from sale while occupied as a home by the widow only. We are clearly of the opinion that it •does. The constitutional provision is as follows :
“A homestead to the extent of one hundred and sixty acres of farming land . . . occupied as a residence by the family of the owner, together with all improvements on the same, shall be exempt from forced sale under any process of law.” (Const., art. 15, §9.)
The property in question is of the character named. It is occupied as a residence. The only remaining question is : Does the widow constitute the family of the owner ? It would seem that the mere statement of the question is its sufficient answer. No one would claim that the land would be subject to forced sale while the owner lived and occupied it with his wife. This is so because the wife living with him constituted his family and thus afforded the basis for the constitutional protection. It is none the less true after the death of the owner himself. (Cross v. Benson, ante, page 495, 75 Pac. 558.)
The cases of Battey v. Barker, 62 Kan 517, 64 Pac. 79, 56 L. R. A. 33, and Ellinger v. Thomas, 64 id. 180, 67 Pac. 529, are cited by the plaintiffs in error in support of their claim that the land in question is not protected from their judgment. The scope of these decisions is entirely misunderstood. In the Ellinger case, Thomas, the owner of the property, after the death of his wife occupied it alone. He, therefore, had no family ; he could not be his own family, and, as the protection afforded is to the “family of the owner,” the necessary basis for the exemption did not exist there.
The Battey case is much nearer the debatable line. In that case the family consisted of a daughter twenty-seven years of age ; but applying the rule adopted by the legislature in the statute of descents and distributions for ordinarily determining the age to which children might arrive and yet be of the family in the constitutional sense, it was concluded that such an one did not constitute the family of the owner, under the circumstances of that case.
In holding that the land in controversy in the case at bar could not be subjected to the payment of the judgment against the deceased husband while it was occupied by the widow, the court below was correct, and its judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
AtkiNson, J. :
On July 29, 1903, a complaint was filed in the police court of the city of Assaria, a city of the third class, charging W. D. Wells in two counts' with selling intoxicating liquors, and in the third count with maintaining and keeping a nuisance, in violation of an ordinance of the city. In the police court he was found guilty on all three counts, and fined fifty dollars on each. From this judgment of the police court he appealed to the district court of Saline county. In the district court he was found guilty on the first and third counts of the complaint and was sentenced to pay a fine of $100, and thirty days’ imprisonment on each count. From this judgment pf the district court the appellant prosecutes an appeal to this court.
The complaint charged a violation of ordinance No. 49 of the city of Assaria, entitled “An ordinance to prohibit the sale of intoxicating liquors and to prohibit and suppress places where intoxicating liquors are sold.” This ordinance was passed by the mayor and council and became effective in January, 1899. Section 7 of said ordinance provided that any person violating any of its provisions should be deemed guilty of a misdemeanor, and, upon conviction, be fined in any sum not more than $100, or by imprisonment not exceeding thirty days, or by both such fine and imprisonment.
In 1901, the legislature, enacted chapter 232 of the Laws of 1901, entitled “An act relating to the sale of intoxicating liquors and the suppression of places where such liquors are sold or used or kept for sale or use contrary to law.” Section 7 of that chapter reads:
“Cities of the first, second and third classes may provide by ordinance for the prohibition of the sale of intoxicating liquors contrary to law and the suppression of common nuisances as hereinbefore defined, and for the search of premises where such common nuisances are maintained, and the seizure and de- struetion of all intoxicating liquors; bottles, glasses, kegs, pumps, bars and other property used in maintaining the same. Such ordinances may be enforced by imposing as a penalty for the violation of the same a'fine of not less than $100 nor more than $500, and imprisonment for not less than thirty days nor more than six months for each offense, and payment of the costs, and shall provide for commitment until fine and costs are paid. . . .”
Upon the trial of the case both in the police court and the district court, defendant challenged the validity of said ordinance No. 49, because the penalty prescribed by said section 7 of the ordinance did not come within the requirements of said section 7, chapter 232, Laws of 1901. (Gen. Stat. 1901, §2999.)
The only authority of the city of Assaria, a city of the third class, for prescribing penalties for the violation of an ordinance, at the time ordinance No. 49 was passed, was section 86, chapter 38, article 5, General Statutes of 1897, being section 1145, General Statutes of 1901. So much of section 86 as is necessary to be considered here reads :
“For any purpose or purposes mentioned in this article, the council shall have power to enact . and to enforce all ordinances, by inflicting fines, forfeitures and penalties upon inhabitants or other persons for the violation thereof, not exceeding $100 for any one offense. . .
Prior to the enactment of chapter 232, Laws of 1901, there had been no power in express terms given to municipalities to pass and enforce ordinances regulating the sale' and handling of intoxicating liquors. The fact that the state had made provision prohibiting and restricting the liquor traffic, and had not, in express terms, made like provision for cities, has been by this court held not to prevent municipalities from passing and enforcing ordinances for the control of the traffic Within the limits of the city. (In re Thomas, Petitioner, 53 Kan. 659, 37 Pac. 171, and cases cited.) The authority then for the passage and enforcement of such ordinances by cities was the general-welfare Clause of the municipal charter. (Monroe v. City of Lawrence, 44 Kan. 607, 24 Pac. 1113, 10 L. R. A. 520 ; City of Topeka v. Myers, 34 id. 500, 8 Pac. 728 ; Franklin v. Westfall, 27 id. 614.) The authority for imposing penalties for their violation in cities of the third class was said section 86, General Statutes of 1897.
The passage of the act of 1901 conferred express authority upon cities to regulate the liquor traffic. Ordinances thereafter passed and ordinances thereafter sought to be enforced by municipalities to regulate this traffic must conform to said act and not be in conflict therewith. It is apparent that the purpose of the legislature in conferring the express authority upon municipalities expressed in section 7, chapter 232, Laws of 1901, was to require a more vigorous punishment of the violators of the prohibitory law than was generally being administered in the municipal courts of the state. Where the legislature has, in express terms, conferred upon municipalities power to pass and enforce ordinances for the regulation and sale of intoxicating liquors, therein prescribing what shall constitute the penalties for a violation thereof, an ordinance of a city passed for the regulation and sale of intoxicating liquors, failing to prescribe penalties within the limits fixed by the legislature, is void and cannot be enforced.
The maximum punishment authorized by said section 1145, General Statutes of 1901, is $100 fine, with no minimum punishment expressed, and no imprisonment provided. The maximum punishment author ized by said section 7 of chapter 282, Laws of 1901 (Gen. Stat. 1901, §2499), is $500 fine and imprisonment for six months, the minimum punishment being $100 fine and imprisonment for thirty days. The maximum punishment authorized by said ordinance No. 49 is $100 fine, or imprisonment not exceeding thirty days, or both such fine and imprisonment, with no minimum punishment expressed. It follows that the'ordinance is void, and the judgment of the court below is reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J. :
Counsel for petitioner contends that the discharge of the the grand juror Lindner was an arbitrary act of the court, without justification in law, and that the substitution of another person in his stead divested the grand jury of jurisdiction to inquire concerning crimes committed in the county, or to indict persons therefor. It is unnecessary to discuss the question further than to say that the grand jury, when it propounded the question which the petitioner refused to answer, was at least a defacto body. ( The State v. Marsh, 13 Kan. 596; In re McElroy, 10 Kan. App. 348, 58 Pac. 677 ; The State, ex rel. Dunn, v. Noyes, 87 Wis. 340, 58 N. W. 386, 41 Am. St. Rep. 45, 27 L. R. A. 776; In re Gannon, 69 Cal. 541, 11 Pac. 240; Ex parte Haymond, 91 id. 545, 27 Pac. 859.)
The four cases last cited hold to the doctrine that the legality of a de facto grand jury cannot be inquired into on hateas corpus proceedings for discharge from commitments based on indictments found by such body, under the rule that the acts of de facto officers cannot be questioned collaterally. (See, also, Andrews v. Swartz, 156 U. S. 272, 15 Sup. Ct. 389, 39 L. Ed. 422.)
It is next insisted that the petitioner should be discharged because the matter concerning which he was interrogated was privileged, and that to require a disclosure by a banker of the amount standing to a depositor’s credit on the bank books would be against public policy. Counsel, thus contending, frankly admits that he has found no adjudicated case which sustains his position. The relation of debtor and creditor exists between a depositor and a banker. By the inquiry in this case, it was sought to ascertain how much the bank owed Bellringer on March 1. The ordinary debtor would hardly stop to assert a privilege in his behalf to protect him from disclosing the amount owing by him to another. Again, it is argued that to permit grand juries or courts to inquire into such private affairs of business men would cause withdrawal of deposits from banks annually for many weeks preceding the 1st of March — some to escape taxation, others to avoid publicity. It is a sufficient answer that annoyance to depositors or the loss to banks predicted by counsel has never appealed to courts or legislatures with enough force to work a change in the rules of evidence. In the case of Loyd v. Freshfield, 2 C. & P. 325, decided in 1826, it was held that a banker was bound to answer what a party’s balance was on a given.day, as it was not a privileged communication. The rule finds approval in the textbooks. (1 Tayl. Ev., Am. ed., §916; Greenl. Ev., 15th ed., §248. See, also, Mackenzie v. Taylor, 6 L. C. J. 83; Hannum v. M’Rae, 18 Ont. Pr. Rep. 185.)
The contention that to compel a disclosure from the witness would be an unreasonable search for and seizure of the depositor’s property is untenable. To obtain information from a witness of the amount and location of another’s money or property cannot come within the constitutional inhibition against unreasonable searches and seizures. There was nothing confidential, in a legal sense, between Davies, the bankerc and his depositor, which would allow the former to assert that the business transactions between them were privileged.
The writ of habeas corpus will be denied and the prisoner remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a criminal action wherein the defendant, Jack E. Long, was convicted of child desertion pursuant to K. S. A. 21-442.
The controlling question on appeal concerns the admissibility of evidence used to obtain a conviction.
The information charging the appellant with child desertion was dated March 18, 1966. Pursuant to K. S. A. 21-445 (now K. S. A. 1971 Supp. 21-3605 [d]) the appellant was released before trial on order of the court and placed on probation under a $1,000 bond and upon his promise to make payments to his wife of $30 per week as child support. On August 16, 1966, a motion was filed to revoke the appellant’s parole. The motion alleged the appellant had failed to adhere to the terms of his probation and that he had failed to report to his parole officer. A bench warrant was subsequently issued for the appellant’s arrest, but the appellant was not arrested until May 13, 1971, after he had been located in the State of California.
During the period the appellant was on probation, and prior to his arrest in California nearly five years after he was placed on probation, the appellant made only one $30 child support payment to his wife.
At the appellant’s trial the state introduced the five documentary exhibits here in controversy which consisted of the following: His recognizance bond; order of probation; record of payments made to the clerk of the district court’s office after the date of the charges; the state’s motion to revoke parole; and the bench warrant issued for the arrest of the appellant.
The appellant’s trial lasted one day. Only three witnesses were called by both the appellant and the prosecution. The three witnesses were the clerk of the district court, the appellant’s wife, and the appellant. The jury impaneled to hear the case returned a verdict of guilty as charged. A motion for a new trial was denied by the trial court, and appeal has been duly perfected.
The appellant contends the court erred in admitting into evidence the state’s Exhibits 1 through 5 heretofore enumerated.
The appellant was charged in an information with unlawfully feloniously and willfully deserting or failing and refusing to support his three minor children from on or about the 29th day of September, 1965, and continuously from that date up to and including the 4th day of March, 1966. Over objection, the five exhibits in question were admitted into evidence on behalf of the state. They disclosed the recognizance bond of the appellant dated March 8, 1966; the requirement that he pay $30 per week commencing April 1, 1966, and each week thereafter for the support of his minor children; the order of probation which he executed March 18, 1966, telling the jury that the appellant had not supported his children for the period charged; the court ledger which disclosed that the appellant failed to make support payments pursuant to the court’s order subsequent to March 18, 1966; the motion to revoke the parole filed by the county attorney August 16, 1966, seeking revocation of the parole for failure to report to his parole officer as ordered; and the bench warrant issued for his arrest on May 17, 1971. Nowhere in the record is it indicated the appellant stood trial or received a hearing on the motion to revoke his parole.
All of these matters occurred subsequent to the period of time the appellant is alleged to have failed to support his children. They disclose to the jury that the appellant failed to support his children subsequent to the time charged and for which the trial court revoked his parole.
The appellant contends this was extremely prejudicial. We agree. The evidence relevant to the crime charged was the appellant’s failure to support his minor children from September 29, 1965, to March 4, 1966. His failure to support subsequent to March 4, 1966, is irrelevant. The admission of the five exhibits in evidence was highly prejudicial.
The trial court’s instruction No. 7 informing the jury of the provisions of K. S. A. 21-445 was also prejudicial. Here the appellant was being tried on charges for failing to support his minor children. The jury would be justified in inferring that the probation which had previously been granted the appellant was violated and revoked for failure to support.
It is the jury’s function to weigh the evidence and find the facts. (State v. Fry, 173 Kan. 536, 543, 249 P. 2d 929.) The jury is the exclusive judge of all material questions of fact. (State v. Jensen, 197 Kan. 427, 441, 417 P. 2d 273.)
When the jury was told the appellant had violated the terms of the probation order the province of the jury was invaded. The jurors were the sole and exclusive judges of all issues of fact in the case. The instruction served only to implant in the mind of each juror the fact that the trial court felt the appellant was guilty. Instructions should be carefully guarded by the trial court so the jurors are left free to exercise their independent judgment upon the facts.
It should be noted the provisions of K. S. A. 60-455, which permits evidence of other crime or civil wrong for the limited purposes specified, were not invoked. This section of the code was not asserted by the prosecuting attorney when the appellant’s objections were lodged, and no limiting instruction was requested or given.
The judgment of the lower court is reversed with directions to grant a new trial. | [
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Per Curiam:
This appeal requires this court to determine only the sufficiency of evidence in a personal injury action to support the submission of the case to the jury. Margaret Smith brought this action against her daughter, Irma C. White and son-in-law Robert W. White. Mrs. Smith died prior to trial and the administrator of her estate was substituted as plaintiff.
The jury found for defendants on Count I of the petition but awarded $15,000 damages, plus court costs, on Count II. The injury involved in Count II occurred on December 21, 1967, while Mrs. Smith was staying in defendants’ home recuperating from a fall which was the basis of Count I.
Defendants owned a dachshund dog named Heidi which was inclined to jump on people. Defendant Robert White testified that often the dog was locked away from visitors because of her high strung nature. He further testified that he kept the dog out of Mrs. Smith’s room as much as possible and that the only time the dog was in the house was when Mrs. Smith was in bed or when defendants were with her.
At the time of the injury, Mrs. White was at work away from home. Mr. White was in the kitchen preparing the evening meal. Defendants’ son was home from school and, not heeding his father’s instructions about leaving the dog outside, let the dog in the backdoor. The dog streaked past Mr. White and into the living room where Mrs. Smith had gotten out of her wheelchair and was proceeding toward her room with the aid of a walker. The dog ran between Mrs. Smith and her walker, causing her to lose her balance and fall. Mrs. Smith suffered a broken arm and other injuries to her shoulder. Five days later she entered the hospital where she remained until she died. Mr. White testified that he did not follow the dog as it ran past him through the kitchen and did not go to the living room until he heard Mrs. Smith holler. All witnesses were called by plaintiff; defendants introduced no evidence whatsoever.
The trial court determined that Mrs. Smith was a licensee and instructed the jury on Count II that plaintiff was entitled to recover only upon a showing that she was injured as a result of willful or wanton misconduct of the defendants in one of two particulars: (a) In failing to control and restrain the dog; (b) in failing to confine or prevent the dog from running into and against the deceased when they knew of her physical condition. Defendants contended by a motion to dismiss at the close of evidence and now contend on this appeal that there was insufficient evidence of willful or wanton misconduct on their part which proximately caused injury to Mrs. Smith to submit the case to the jury. Plaintiff apparently made no objection to assuming the burden of proving wanton misconduct.
Plaintiff claimed damages for aggravation of a preexisting ailment, and the jury was instructed that it might award damages for such aggravation. Plaintiff contended that the fall caused the activation of a previously dormant cancerous condition. Assuming willful or wanton misconduct was found, defendants contend there was insufficient evidence of aggravation of a preexisting cancerous condition to be the basis for an award of damages.
We determine the evidence here insufficient to raise a jury question on the issue of liability. It is undisputed that Mrs. White, the daughter of plaintiff, was away from the home at the time of the accident. It is thus inconceivable that she engaged in willful or wanton misconduct causing the accident. Likewise it is difficult to find negligence, let alone willful or wanton misconduct, on the part of Mr. White which could have proximately caused the accident.
Willful conduct is action indicating a design, purpose or intent on the part of a person to do wrong or to cause an injury to another. The record is devoid of evidence to show either defendant intended to injure Mrs. White’s mother.
Wanton conduct is action indicating a realization of the immi nence of danger and a reckless disregard and complete indifference and unconcern for the probable consequences of the action. (Duckers v. Lynch, 204 Kan. 649, 653, 465 P. 2d 945.) There is not sufficient evidence of “complete indifference” on the part of Mr. White to show wanton misconduct on his part. He had placed the dog in the backyard and his son had been cautioned to leave the dog there. Clearly, he took action to confine the dog away from Mrs. Smith. Mr. White’s failure to follow the dog as it ran past him to try to prevent the dog from reaching Mrs. Smith could not reasonably rise to the level of wantonness. There is nothing in the record to show that his failure to follow the dog contributed to Mrs. Smith’s injury. Nothing in the record indicates he could have reached the living room in advance of the dog.
The decision of the trial court is reversed with directions to sustain the motion of defendants for a directed verdict. | [
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The opinion of the court was delivered by
Prager, J.:
This is an appeal by the state in a post-conviction proceeding filed pursuant to K. S. A. 60-1507. With the exception of a very narrow area the facts are not greatly in dispute and are substantially as follows: On August 9, 1964, an armed robbery took place in the home of Ralph Pellow, Overland Park, Kansas. The robber took by force from Mr. Pellow a valuable coin collection, articles of clothing, various items of jewelry and Pellow’s identification holder which contained various credit cards and the titles to two automobiles. On September 18, 1964, the appellee, Charles L. Pierson, was arrested in California and certain items from the Pellow home were recovered from his apartment. The county attorney of Johnson County, Kansas, was so advised and on October 7, 1964, he filed a complaint in the Johnson County Magistrate Court charging Pierson with the armed robbery of Ralph Pellow. On October 8, 1964, a warrant was issued for Pier-son’s arrest. Pierson was convicted and served time on a charge in California. He remained in prison there until March 4, 1966, at which time he was returned to the Kansas State Penitentiary for a parole violation. On March 9, 1966, William R. Barker, Chief of Records at the Kansas State Penitentiary, received a letter from the sheriff of Johnson County requesting that a detainer be placed against Pierson on the warrant for the Pellow robbery. Mr. Barker sent an acknowledgment of receipt of the detainer to the sheriff of Johnson County. It should be noted that at all times thereafter the presence of Pierson in the Kansas State Penitentiary was known to the sheriff of Johnson County. On the same day Barker prepared for Pierson a request for disposition of detainer form in compliance with the Uniform Mandatory Disposition of Detainers Act, K. S. A. 62-2901 et seq. On March 9, 1966, the appellee Pier-son was confined in the Segregation and Isolation Building at the penitentiary. On that day Mr. Barker personally took the request for disposition of detainer to the Segregation and Isolation Building where it was signed by Pierson whose signature was verified by Barker. It should be noted that the request for disposition of detainer form is prepared and furnished by the Kansas penal authorities.
At the K. S. A. 60-1507 hearing William R. Barker testified as to what was done with the signed request forms and what steps he took to comply with the Uniform Mandatory Disposition of Detainers Act. Barker testified in substance that four copies of the request for disposition of detainer form were signed by Pierson. The routine procedure is for one signed copy to be retained by the prisoner, one copy to be placed in the prisoner’s penitentiary file, one copy to be mailed to the county attorney and one copy to be mailed to the clerk of the particular county court where the prosecution is pending and from which the warrant for arrest and detainer were originally issued. Barker testified that his usual practice was without delay to address envelopes to the county attorney and to the clerk of the appropriate court and to place therein the copy of the request for disposition of the detainer and to mail them by registered mail, return receipt requested. Barker testified that he was certain he followed the usual procedure in this case.
Pierson heard nothing further about the matter until December of 1966 when Myron Scafe, a police officer of the Overland Park Police Department, came to visit Pierson at the penitentiary. At the 60-1507 hearing Pierson testified that Scafe interviewed him about the Pellow robbery in order to obtain information so that items of Mr. Pellow’s property might be recovered. Pierson testified that Mr. Scafe mentioned the fact that Pierson had filed a mandatory detainer form and made some comment that they could not try him now. This testimony indicated that the Overland Park Police Department had some knowledge that the Uniform Mandatory Disposition of Detainers Act had been invoked by Pierson at some time prior to December of 1966. Nothing happened after that until June 2, 1967, at which time Pierson was discharged from the sentence he was then serving at the Kansas State Penitentiary and was arrested by the sheriff of Johnson County on the Pellow armed robbery warrant which had been issued on October 8, 1964. Pier-son was taken to Johnson County for trial on the Pellow armed robbery charge.
On September 7, 1967, Pierson was arraigned before the district court of Johnson County. He stood mute. The district judge entered a plea of not guilty for Pierson. On September 11, 1967, the armed robbery charge came on for trial. The record discloses that Pierson s counsel moved that the case be dismissed on the ground that he had been denied a speedy trial under K. S. A. 62-1301 and also K. S. A. 62-1431. The then county attorney called the court’s attention to the Uniform Mandatory Disposition of Detainers Act and stated that K. S. A. 62-1301 and 62-1431 were not applicable to a prisoner confined in a Kansas penal institution. Pierson did not specifically mention the Uniform Mandatory Disposition of Detainers Act. The court overruled the motion to dismiss; whereupon Pierson’s counsel moved for a continuance of the trial which motion was denied. The case went to trial and on September 12, 1967, Pierson was convicted of robbery in the first degree. He was sentenced to a term of 40 to 60 years in the state penitentiary. A direct appeal was taken to this court. Pierson’s conviction was affirmed December 7, 1968, in State v. Pierson, 202 Kan. 297, 448 P. 2d 30. Denial of speedy trial was not raised as an issue on that appeal.
On September 30, 1970, Pierson filed this K. S. A. 60-1507 proceeding in the Johnson County district court. The basis of the proceeding was that Pierson had been denied a speedy trial under the Uniform Mandatory Disposition of Detainers Act, K. S. A. 62-2901 et seq. He contended that he had fully complied with the requirements of that act and that the Johnson County district court was without jurisdiction to try him on the Pellow charge. On December 18, 1970, a full evidentiary hearing was held on Pierson s 60-1507 petition. The appellee Pierson, William R. Barker and Myron Scafe of the Overland Park Police Department testified. In addition stipulations of fact were made by the parties. At the conclusion of the hearing the case was taken under advisement by the court. On April 8,1971, the district court sustained Pierson’s motion to vacate his conviction and sentence. It was ordered that Pierson be released and discharged from his conviction of armed robbery and the sentence imposed. The state has prosecuted a timely appeal to this court.
Before taking up the specific points which the state raises on this appeal it would be helpful to examine the applicable sections of the Uniform Mandatory Disposition of Detainers Act and the decisions of this court construing the same. We are concerned in this case particularly with K. S. A. 62-2901, 62-2902 and 62-2903. These specific statutes were repealed when we adopted the new Kansas Code of Criminal Procedure and were reenacted with minor changes in wording as K. S. A. 1971 Supp. 22-4301, 22-4302 and 22-4303. Specifically these statutory provisions are as follows:
“62-2901. Request for final disposition of detainer by prisoner; duties of official custodian; dismissal, when, (a) Any person who is imprisoned in a penal or correctional institution of this state may request final disposition of any untried indictment, information or complaint pending against him in this state. The request shall be in writing addressed to the court in which the indictment, information or complaint is pending and to the county attorney charged with the duty of prosecuting it, and shall set forth the place of imprisonment.
“(b) The warden, superintendent or other official having custody of prisoners shall promptly inform each prisoner in writing of the source and nature of any untried indictment, information or complaint against him of which the warden, superintendent or other official has knowledge or notice, and of his right to make a request for final disposition thereof.
“(c) Failure of the warden, superintendent or other official to inform a prisoner, as required by this section, within one (1) year after a detainer has been filed at the institution shall entitle him to a final dismissal of the indictment, information or complaint with prejudice.
“62-2902. Delivery of request to custodian; officials’ duties. The request shall be delivered to the warden, superintendent or other officials having custody of the prisoner, who shall forthwith:
“(1) Certify the term of commitment under which the prisoner is being held, the time already served on the sentence, the time remaining to be served, the good time earned, the time of parole eligibility of the prisoner, and any decisions of the state board of probation and parole relating to the prisoner; and
“(2) send by registered or certified mail, return receipt requested, one copy of the request and certificate to the court and one copy to the county attorney to whom it is addressed.
“62-2903. Trial within 180 days after receipt of request and certification, exceptions; dismissal, when. Within one hundred eighty (180) days after the receipt of the request and certificate by the court and county attorney or within such additional time as the court for good cause shown in open court may grant, the prisoner or his counsel being present, the indictment, information or complaint shall be brought to trial; but the parties may stipulate for a continuance or a continuance may be granted on notice to the attorney of record and opportunity for him to be heard. If, after such a request, the indictment, information or complaint is not brought to trial within that period, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment, information or complaint be of any further force or effect, and the court shall dismiss it with prejudice.”
Since the adoption of the act in 1959 this court has handed down a number of interpretative decisions. In State v. Goetz, 187 Kan. 117, 353 P. 2d 816, we held that the granting of a speedy trial by section 10 of our Bill of Rights as defined by K. S. A. 62-2901 is not a grant of a mere privilege. It is the grant to an accused person of a right of which he canot be deprived by the laches of public officials. In Goetz we also held that the right to a speedy trial is a personal right which may be waived, and is waived, if the accused fails to assert his right. In Goetz a warrant for Goetz’ arrest was issued on September 2, 1958. On September 5, 1958, Goetz was committed to the Kansas state penitentiary on an offense committed in another county. In the same month Finney County authorities filed a detainer with the prison authorities. On three different occasions Goetz made a written demand on the county attorney of Finney County for a speedy trial. On July 9, 1959, Goetz caused a request for disposition of detainer to be sent to the judge of the county court and the county attorney of Finney County pursuant to the recently enacted Uniform Mandatory Disposition of Detainers Act. On September 10, 1959, Goetz was returned to Finney County.' He was given a preliminary hearing on September 16, 1959, and was bound over for trial to the district court. Counsel was appointed for Goetz and on November 6 appointed counsel filed a motion for discharge on the grounds that Goetz had not been given a speedy trial. The motion was overruled; Goetz was returned to Finney County on January 9, 1960. At the trial he renewed his motion for discharge on the ground that he had not been afforded a speedy trial under the Uniform Mandatory Disposition of Detainers Act. The motion was overruled. Then the county attorney dismissed the first count of the information and Goetz pled guilty to the second count. This fact is important on the issue of waiver which has been raised by the state in the case at bar. The defendant then filed a motion for a new trial questioning the jurisdiction of the court. This motion was overruled and Goetz was sentenced to confinement in the penitentiary. On appeal this court reversed, holding that since Goetz had complied with the uniform act, the trial court lacked jurisdiction to accept Goetz’ plea of guilty. The important point to note is tihat where there has been a compliance by the prisoner with the requirements of the Uniform Mandatory Disposition of Detainers Act and no good cause is shown for the lapse of more than 180 days without trial, the courts of Kansas no longer have jurisdiction to proceed with the prosecution. It is a matter of loss of jurisdiction.
In Brimer v. State, 195 Kan. 107, 402 P. 2d 789, we held that a prisoner must comply with all of the provisions of the uniform act in order to obtain rights under the act. In Brimer the prisoner addressed his request to the wrong court — to the district court instead of to the city court. His request for disposition was, however, promptly sent to the county attorney. Since Brimer had failed to comply with the statute’s mandatory requirements, we held that he could not avail himself of his rights under the act.
In State v. Morton, 200 Kan. 259, 436 P. 2d 382, it was held that the Uniform Mandatory Disposition of Detainers Act, K. S. A. 62-2901 et seq., applies only when imprisonment is in a penal or correctional institution of this state and has no application when the imprisonment is by some jurisdiction other than the State of Kansas.
Again in State v. Brooks, 206 Kan. 418, 479 P. 2d 893, and in Thomas v. State, 206 Kan. 529, 479 P. 2d 897, we held that in order to avail himself of rights afforded by the uniform act, it is incumbent upon an accused incarcerated in a penal institution in this state to bring himself squarely under the statute and to comply with its provisions, including the preparation of his written request for disposition of detainer to be addressed to the appropriate court and county attorney.
In State v. Ellis, 208 Kan. 59, 490 P. 2d 364, we held that since the Uniform Mandatory Disposition of Detainers Act was applicable, the failure of tibe warden or other officers having custody of Ellis to notify the prisoner of a pending information charging escape in the district court of Leavenworth County within one year after a detainer had been filed, entitled Ellis to dismissal of the information pending against him with prejudice. We noted in Ellis that the fact that the prisoner may have been aware of the pendency of the criminal action in the Leavenworth District Court and the fact that he may have been aware of his rights under the act did not excuse compliance by the prison officials with the clear and mandatory provisions of the statute. The essence of the decision is that the rights of a prisoner could not be prejudiced by failure of the prison officials to carry out their clear and mandatory duties required by the uniform act. We followed Ellis in State v. Norris, 210 Kan. 457, 502 P. 2d 817.
With the Uniform Mandatory Disposition of Detainers Act and the interpretative decisions just discussed in mind we will now turn to the issues before us on appeal in the case at bar.
It is undisputed that on March 9, 1966, the appellee Pierson was a prisoner at the Kansas State Penitentiary and that on that date William R. Barker as records clerk of the penitentiary received a detainer and an arrest warrant from the case pending in Johnson County charging Pierson with armed robbery. The evidence is undisputed that Pierson signed a request in writing for final disposition of the detainer addressed to the appropriate court and county attorney on a form provided him by the penal officials. The evidence is undisputed that four copies of the request for disposition of detainer were signed by Pierson. One copy was retained by Pierson and three copies were delivered to Barker. One of these copies was placed in Piersons file in the records office of the penitentiary. The whereabouts of the other two copies is unknown. It is obvious that at this point the prisoner Pierson had fully performed all the acts required of him by the uniform act. From this point on K. S. A. 62-2902 placed the burden upon the warden, superintendent, or other officials having custody of the prisoner to forthwith certify certain information about the prisoner and to mail it along with the request for disposition by registered or certified mail to the appropriate court and county attorney. We wish to emphasize that we do not have before us on this appeal the issue as to whether or not the rights of a prisoner are to be denied under the uniform act where properly completed forms of request for disposition of detainer are received from the prisoner by the prison officials and are negligently misdirected or not sent at all to the court or county attorney of the county where the case is pending.
On this appeal the state as appellant raises a number of points as a basis of claimed error in the court below. We will consider each point separately. The appellant contends that appellee waived his right to assert a denial of a speedy trial under K. S. A. 62-2901 et seq. because he failed to raise the issue at the time he was tried and convicted of robbery in September of 1967, and further because he failed to raise that issue on the direct appeal in that case. The record shows clearly that prior to the trial in the armed robbery case Pierson moved for dismissal of the case on the basis that he had been denied a speedy trial. He specifically referred to K. S. A. 62-1301 and K. S. A. 62-1431 rather than K. S. A. 62-2901 et seq. Nevertheless we think it clear that under the rule adopted in State v. Goetz, supra, where a proper demand is made by a prisoner for speedy trial under the provisions of the Uniform Mandatory Disposition of Detainers Act and there is failure on the part of the state to comply with that act by bringing the prisoner to trial within the statutory period, no court of Kansas has jurisdiction to try the case and the court is required to dismiss it with prejudice. The provisions of K. S. A. 62-2903 require this result. Hence, it follows that if appellee Pierson complied with all the requirements of the uniform act and the state failed to try him within the statutory time allowed, the failure to raise the issue at the time of the trial or on his direct appeal would not constitute a waiver of his rights under the act.
The state next contends that the trial court erred in failing to take judicial notice of the files and records in the magistrate court case No. 13,371 and in district court case No. 54,578 involving the criminal case where Pierson was charged and convicted of armed robbery. We hold that this point is without merit since it was stipulated by the parties that these files do not contain any record reflecting that either of those courts or the Johnson County attorney’s office had received a copy of Pierson’s request for disposition of detainer or any indication of such request. The state made no attempt to introduce the files into evidence and pointed out nothing contained in the files of any further probative value on the issues in this case. Under the circumstances we find no error on this point.
The state’s main points on this appeal involve the sufficiency of the evidence to support the findings of the trial court that the magistrate court and county attorney of Johnson County received the request for disposition of detainer signed by Pierson and the certificate prepared by Barker so as to require the state to bring Pierson to trial within the 180 day period. William R. Barker in his testimony at the 60-1507 evidentiary hearing testified as to his receiving three copies of the request for disposition of detainer signed by the appellee Pierson. He testified that his usual procedure immediately upon getting them signed was to address two envelopes to the proper court and county attorney then to mail the envelopes by certified or registered mail. He felt that his usual procedure was followed in this case and he was sure that the letters were mailed here. It can not be denied that there was a genuine issue of fact in this case as to whether or not the request of disposition of detainer signed by Pierson and the certificate prepared by Mr. Barker were mailed and received by the magistrate court and county attorney of Johnson County. There was nothing in the files of tire clerk of the magistrate court or in the file of the clerk of the district court to show that they had been received by those officials. The county attorney offered no evidence whatsoever to the effect that his office had not received copies of the request and the certificate. The evidence did disclose however that the two copies of the request signed by the prisoner Pierson which normally would have been sent to the appropriate court and the county attorney could not be located anywhere in the files of the penitentiary. An issue was also raised as to failure of Barker as records clerk to produce the return receipts showing service of the request of disposition for detainer and the certificate by registered mail. According to Barker’s testimony these return receipts may well have been lost when the mailroom was flooded by water from broken water pipes a year or so prior to Barker’s testimony. In his own mind Barker felt that the registered receipts had been prepared and transmitted. After reading the entire record in this case we have concluded that the findings of the trial court that Pierson’s request for disposition of the detainer had been received by the magistrate court and county attorney were supported by substantial competent evidence. We have considered the other points raised by the State and find them to be without merit.
The record shows that the appellee Pierson complied with all of the requirements of the Uniform Mandatory Disposition of Detainers Act and he is entitled to the protection of the same. Since he was not afforded a trial within the time required by that act, we find that the trial court did not commit error in vacating the appellee Pierson’s conviction and sentence and in ordering that he be released and discharged therefrom.
The judgment is affirmed. | [
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Per Curiam:
This is an appeal from the overruling of a motion to vacate sentence filed pursuant to K. S. A. 60-1507.
In March of 1968 the appellant was convicted by a jury of second degree burglary and grand larceny. A motion for new trial was overruled and he was sentenced under the Habitual Criminal Act. He took a direct appeal from that conviction and it was affirmed in State v. Johnson, 204 Kan. 62, 460 P. 2d 505.
Subsequently, the appellant filed this motion to vacate in May of 1970, collaterally attacking his sentence on numerous grounds. However, by amendment, stipulation and agreement of counsel, the grounds were narrowed to two.
At the beginning of the hearing in the trial court, George W. Earnshaw, attorney for movant, advised the court that movant was proceeding on only two points:
“(1) That movant did not receive competent representation because his counsel did not have time to prepare a competent case, and
“(2) That movant was deprived of his right to counsel at preliminary hearings.”
All other points included in the motion were abandoned as separate grounds. This was explained to the movant and accepted by him.
Whether a defendant’s counsel was so incompetent and inadequate in representing his client that the total effect was the complete absence of counsel, is to be gauged from the total representation. (State v. Richardson, 194 Kan. 471, 399 P. 2d 799; Toland v. State, 200 Kan. 184, 434 P. 2d 550; Baker v. State, 204 Kan. 607, 464 P. 2d 212.) Here, the record clearly reflects competent counsel. The theory upon which the appellant relies is that he was denied a continuance before trial and counsel did not have adequate time to prepare the case. The granting of a continuance lies within the sound discretion of the trial court. Although the court’s refusal to grant the movant’s motion for continuance was raised by him as grounds for a new trial, that issue, for some reason, was not raised in the direct appeal. Since refusal to grant a continuance is a trial error, the appellant must show exceptional circumstances at this late date to avail himself of relief on this ground. (Rule No. 121 [c], 205 Kan. XLIV; Barnes v. State, 204 Kan. 344, 461 P. 2d 782; Baker v. State, supra; Eaton v. State, 206 Kan. 187, 476 P. 2d 694; Bush v. State, 203 Kan. 494, 454 P. 2d 429.) The record in this case discloses no unusual circumstances or intervening changes in the law which prevented the appellant from asserting all trial errors on direct appeal. Accordingly, the propriety of the order denying a continuance is not before the court. (Cantrell v. State, 206 Kan. 323, 478 P. 2d 192; Yurk v. State, 208 Kan. 946, 495 P. 2d 87.)
As to appellant’s second contention, it may be said that when the preliminary hearing was held in this case the failure to appoint counsel to represent an indigent defendant at such a hearing had not been held to violate the due process clause of the Fourteenth Amendment to the Constitution of the United States. This court has so held on numerous occasions. (See Chance v. State, 195 Kan. 430, 407 P. 2d 236, and the many cases cited on page 434 of that opinion.) It was not until June 22, 1970, that Coleman v. Alabama, 399 U. S. 1, 26 L. Ed. 2d 387, 90 S. Ct. 1999 was handed down holding that the preliminary hearing of a defendant is a “critical stage” in the criminal process requiring the assistance of counsel. It may be added that the right to counsel at the preliminary examination has now been made a statutory requirement in this state. (K. S. A. 1971 Supp. 22-4503.) However, it was held in Adams v. Illinois, 405 U. S. 278, 31 L. Ed. 2d 202, 92 S. Ct. 916, that retrospective effect is not to be given the pronouncement in Coleman v. Alabama, supra. Accordingly, in those cases where the preliminary hearing of an accused *was held prior to the Coleman decision we adhere to our former rule that in the absence of a showing of prejudice, the failure to provide counsel at that stage of the proceedings does not constitute error. (Delano v. State, 209 Kan. 670, 498 P. 2d 18.
Specifications of error three and four relate to the sustaining of objections to questions put to appellant’s prior attorneys as expert witnesses. The specifications are without merit. The qualification o£ witnesses and the admissibility of opinion testimony are matters within the sound discretion of the trial court. (Taylor v. Maxwell, 197 Kan. 509, 419 P. 2d 822; Trimble, Administrator v. Coleman Co., Inc., 200 Kan. 350, 437 P. 2d 219; Howard v. Stoughton, 199 Kan. 787, 433 P. 2d 567.) In light of the questions propounded to the witnesses it is clear the trial court did not abuse its discretion in sustaining objections thereto.
As a final point of error it is said the trial court erred in finding appellant was not indigent at any time during the criminal proceedings. The record adequately supports the finding. At no time dining the criminal proceedings did appellant indicate that he was indigent, nor did he request assistance of counsel. To the contrary, he represented to the court on every occasion that he had retained counsel.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
This is an action to recover workmen’s compensation benefits. The claimant, Adolph H. Boeckmann, was employed by the respondent, Goodyear Tire and Rubber Company of Kansas, for some sixteen years, the last six in the capacity of a special classifier and inspector of truck and tractor tires. The examiner entered an award for medical expenses but denied compensation for permanent or temporary total disability and the director affirmed the award on review. The district court, on appeal, adopted the examiner’s findings and affirmed the award as entered. The claimant now brings the case to this court. We shall refer to the parties as claimant or Boeckmann on the one hand and respondents or Goodyear on the other.
At the time claimant became disabled in June 1969, he was 54 years of age and had a history of degenerative arthritis of the hips dating back to 1958. In 1963 he underwent an operation to his left hip and a metal cup or prosthesis was inserted in the hip by Dr. Kroll, a Topeka orthopedic surgeon. Claimant remained under Dr. Kroll’s care for some year and a half thereafter.
In 1966 Roeckmann noticed pain occurring in his right hip which continued to progress regularly. During the summer of 1968 the pain became noticeably worse and progressed more rapidly. Some three weeks prior to June 7, 1969, after a coffee break at the Goodyear plant, the claimant got up from the conveyor belt on which he had been lying, and felt a pain in his back. The next morning he was unable to get out of bed and was away from work for three days. On this occasion he consulted a Hiawatha doctor. At this time he also secured an appointment to see Dr. Kroll on June 10.
On June 7, 1969, Mr. Boeckmann pulled a tire off the conveyor belt to be buffed. After buffing the tire he rolled it back to the conveyor and had stooped down to pick it up so that he might replace it on the belt when a pain hit him in the back. He notified the plant office at this time, and on June 10 he kept his appointment with Dr. Kroll. The doctor advised him not to return to work, and the claimant has been on retirement disability ever since.
The examiner found that claimant was disabled from doing strenuous labor; that both hip joints have deteriorated to the point where he is unable to do the things his job required; that he is disabled because of his diseased hips and not because of back strain; that there was no causal connection between the back strain of June 7, 1969, and claimant’s hip condition; that while the bending, stooping and twisting required by claimant’s job aggravated the arthritic process already existing in his hips, these episodes did not amount to miniature accidental accidents, but that the simple everyday acts of living were as much to blame for claimant’s condition as was his work. The examiner concluded, that the accidental injury to the claimant’s back on June 7, 1969, resulted in no permanent disability. Accordingly, the examiner denied any award for permanent or temporary disability while allowing, at the same time, medical benefits related to the June 7 incident. As has been said, the examiner’s findings were approved and his award was adopted both by the director and by the district court.
On the present appeal the claimant makes two contentions, one of them being that the examiner’s finding that no causal relationship existed between the accidental strain to claimant’s back on June 7, 1969, and claimant’s present disability, is not supported by the evi dence. As we read the record before us this claim must be rejected, for our rule in compensation cases is that where findings are supported by substantial competent evidence they will not be overturned on appeal. (5 Hatcher’s Kansas Digest [Rev. Ed.] Workmen’s Compensation, § 137.) Dr. Kroll attributed the claimant’s disability to the arthritic changes in his hips and was of the opinion the June 7 incident would not make any difference in the hips. Two other medical doctors testified by deposition, one of whom related an aggravation of claimant’s hip problems to the back strain of June 7, while the other doctor did not think any relationship between the two was very likely. It is apparent that the evidence on this point was conflicting. Hence the examiner’s negative finding, affirmed by the district court, to the effect that no disability, either permanent or temporary, resulted from the accidental injury of June 7, is to be sustained, agreeably to our rule.
The claimant’s principal reliance, however, is based on what he denominates as the Winkelman doctrine. At oral argument Boeckmann’s counsel prefaced his remarks with the assertion that the legal question presented here is whether that doctrine is applicable under the confronting facts of this case. It therefore behooves us to take a look at Winkelman v. Boeing Airplane Co., reported in 166 Kan. 503, 203 P. 2d 171.
Winkelman was a common-law action to recover damages for permanent loss of hearing. The workman had been employed by Boeing for some 18 months during the second world war as an assistant instructor of guards at the company’s indoor pistol range. He fashioned his case on the theory that the indoor range as constructed and operated was not a safe place for pistol firing; that he was subjected to constant explosions of .38 calibre ammunition which reverberated against the walls, ceiling and floor for an abnormal length of time; that the continuous and extended periods of gunfire gradually impaired his hearing; and that his hearing loss did not result from an accident within the purview of the Workmen’s Compensation Act. On the other hand, the defendant asserted that Winkelman’s injury was compensable under the act, thus barring him from maintaining a common-law damage action. This court agreed with the defendant’s point of view and directed judgment in its favor.
We are frank to acknowledge that if the rationale of Winkelman is applicable to the situation before us, this case must be reversed. Even-handed justice requires that in determining whether a work man’s injuries come within the compensation act the same legal principles must control and the same standards must be applied whether an employer makes such a claim in defending a common-law action or a workman advances the claim in attempting to recover compensation. A majority of this court believes, however, there are important distinctions between the facts presented in Winkelman and the facts surrounding this case, and that the factual differences so distinguish the two cases that the rationale of Winkelman has no relevance here.
A critical distinction lies in the fact that the medical evidence related Winkelmans loss of hearing to trauma occurring on the job. It was trauma, according to the doctor’s testimony, which damaged the small nerve ends in the affected ear and led to Winkelmans deafness. The court made this clear where it said:
“That the instant injury is of traumatic origin was clearly established. The traumatic deafness, employing the language of Doctor Seydell, resulted from the constant hammering.’ Such hammering did not give the injury to the ear, the hearing, an opportunity ‘to come back.’” (p. 506.)
In elaborating on the accidental nature or origin of the hearing loss, the court goes on to say:
“Appellee argues there is no evidence that injury or disability occurred to the workman after any one specific pistol shot and states that this ‘. . . is the crux of plaintiff’s cause of action.’ It frankly should be conceded there was no evidence that any one particular shot alone produced permanent traumatic deafness. The substance of the evidence is that the constant and intensive firing and hammering which did not permit ‘the hearing to come back’ produced the traumatic deafness. . . . Manifestly each pistol retort or explosion, at the time it occurred, caused some injury and contributed to the permanent injury. . . .” (p. 508.)
In contrast, there is no evidence here relating the origin of claimant’s disability to trauma in the sense it was found to exist in Winkelman. No outside thrust of traumatic force assailed or beat upon the workman’s physical structure as happened in Winkelman. Whatever the origin of Mr. Boeckmann’s crippling arthritis may have been, it was not born of his employment. It existed before claimant entered upon his duties as an inspector of heavy tires, and it is safe to infer the degenerative process will continue to progress long after his retirement. In these aspects the instant case differs from Winkelman.
Claimant calls our attention to the definition of “accident” set out in Pinkston v. Rice Motor Co., 180 Kan. 295, 300, 303 P. 2d 197, where this court said that the term, as used in the Workmen’s Compensation Act, was to be construed “as meaning an occurrence or event which is undesigned, sudden and unexpected, usually of an afflictive or unfortunate character and often, but not necessarily, accompanied by a manifestation of force.” We might add that the court also said that personal injury is generally construed as meaning a lesion or change in physical structure causing the body to give way under stress of a workman s usual labor and it is not essential that the disorder be such as to present external or visible signs of its existence.
The language in Pinkston must be examined in relation to the facts of that case. The medical testimony indicated that Pinkston’s death was due to an acute coronary occlusion which had not existed for any period of time prior to his death; that a short time before he was stricken, the decedent had been walking over uneven terrain in the cold temperature prevailing at the time which had constricted the coronary arteries and would aggravate and precipitate the attack. The court held that Pinkston’s activity in walking up and down a ravine in the rain under freezing temperatures while garbed in heavy clothing authorized the trial court to relate the coronary occlusion to his physical exertion and to conclude that such exertion was a contributing factor to the fatal seizure which was “as distinctly traumatic as if the heart had been stopped by the violent application of force from without.” (p. 301.)
Claimant cites other cases similar to Pinkston, in that evidence of external trauma was lacking. In each of them, however, the injury was shown to be sufficiently related to a particular strain or episode of physical exertion to support a finding by the trial court of an accidental injury arising out of and in the course of the workman’s employment.
As being representative of this class of cases, it is pertinent to note, in addition to Pinkston, the early case of Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793, where the workman was employed in a quarry, breaking large rocks into smaller rocks with a 16 pound sledge and loading the rocks into small cars. While so engaged he suffered a hemorrhage from the rupture of a pulmonary artery and he died before medical aid could reach him. We shall not burden this opinion by analyzing other cases cited of similar import. It is sufficient to say they involve injury or damage directly related to a strain or strenuous incident, even though trauma in an outside sense was not apparent.
The instant case differs from Winkelman, Pinkston, Gilliland and other cases where so-called internal trauma was found, in that here the medical evidence is conflicting not only as to the causal connection between claimant’s arthritic hips and the June 7 strain, but also as to the relationship between the degenerative hip condition and the claimant’s general employment with Goodyear. Dr. Kroll testified he did not think that Mr. Boeckmann’s hip problems, or the disabilities arising therefrom, were caused by his work at the Goodyear plant; that his employment did not cause his condition to occur; that the hip condition had been a progressive process; that increased activity was liable to aggravate the claimant’s underlying problem but that almost any everyday activity has a tendency to aggravate the problem; that every time the claimant bent over to tie his shoes, or walked to the grocery store, or got up to adjust his TV set there would be a kind of aggravation of his condition. Dr. Coffey saw a connection between an aggravation of claimant’s condition and his work, but he also felt that any kind of trauma, including the ordinary incidents of life such as walking around the yard or house or schoolyard would produce trouble for a man in claimant’s condition. Dr. Cavanaugh testified that degenerative arthritis or malum coxae senile, as the condition is commonly used in orthopedic parlance, is not traumatically induced but that the joint surfaces just waste away; no one knows its cause or why it happens; that it is insidious and persistent; it gets worse all the time regard less of what one is doing; that it happens to housewives, and would progress even in a wheelchair.
As counsel for claimant asserts, this court has held many times that aggravation of a pre-existing physical condition is compensable in a workmen’s compensation action where the injury arose out of and in the course of the workman’s employment, for the Workmen’s Compensation Act prescribes no standard of health for workmen. (Geurian v. Kansas City Power & Light Co., 192 Kan. 589, 389 P. 2d 782; 5 Hatcher’s Kansas Digest [Rev. Ed.] Workmen’s Compensation, § 16.) This is not to say, however, that a relationship need not be established between the aggravation and accidental injury arising out of the employment. Causation remains an essential.
Both Dr. Kroll and Dr. Coffey expressed the opinion that the bending, the stooping and the lifting required in claimant’s work would aggravate the underlying arthritic changes, and the examiner so found. But with the exception of the June 7 incident, there is no evidence, medical or otherwise, relating to the claimant’s condition to any strain, stress or unusual exertion in either time, place or circumstance. To the contrary, it rather plainly appears that the everyday bodily motions required by claimant’s work gradually and imperceptibly eroded the physical fibers of his structure, as the patient drip of water wears away the stone. The examiner found, on what we deem sufficient evidence, that any movement would aggravate Boeckmann’s painful condition and there was no difference between stoops and bends on the job or off.
This brings us again to the heart of the case — the essence of claimant’s contention. The claimant would have this court hold that the ordinary movements and motions of his daily work, the bending, stooping and twisting as he puts it, were tantamount to a continuous series of minuscule accidents which eventually, over the years, culminated in his permanent disability, thus entitling him to compensation as from a work-related accident. This contention essentially amounts to the argument that the physical, commonplace, day to day activities of a person’s employment, whatever they may be, as they continue to nibble and wear away the bones, joints and tissues which once were strong and sturdy in the early days of youth bring in their wake an endless succession of minute compensable accidents unrelated to time, place or circumstance. In our opinion this philosophy is not encompassed within the boundaries of the Workmen’s Compensation Act and we decline to give the act such a construction.
The judgment of the court below is affirmed.
Schroeder, J., dissents. | [
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The opinion of the court was delivered by
Prager, J.:
These two actions arose out of an automobile collision which occurred on October 20, 1968. The appellant, Ruth I. Smith, is the wife of Ralph E. Smith. Ruth and Ralph are the parents of Randy E. Smith who was 11 years of age at the time of the collision. At the time the accident occurred Ralph E. Smith was driving the family car in an easterly direction on U. S. Highway 24. Ruth I. Smith was a passenger sitting on the front seat and Randy was a passenger sitting on the rear seat. The appellee, Valentine Newell, had been driving his automobile south on U. S. 59 and stopped at a stop sign at the point where U. S. 59 and U. S. 24 intersect. As the Smith vehicle approached the appellee pulled into the intersection and the vehicles collided in the intersection on the south half of U. S. 24.
Three separate actions were filed by Ralph E. Smith, Ruth I. Smith and Randy E. Smith against Valentine Newell to recover damages for personal injuries incurred by each plaintiff in the accident. The three cases were consolidated for trial before a single jury. The issue of liability was vigorously contested by the parties. The three cases were submitted to the jury on special interrogatories without a general verdict. In its answers to the special interrogatories the jury found the appellee, Valentine Newell, negligent in failing to keep a proper lookout. The jury found that Ralph E. Smith was negligent in failing to keep his vehicle under proper control. Having found that Ralph E. Smith was negligent, the jury did not determine his damages. In regard to the appellant, Ruth I. Smith, the jury found that she was not negligent and assessed her damages in the amount of $22,750. The jury found that Randy E. Smith was not negligent and assessed his damages at $44. All of the plaintiffs filed motions for a new trial which were argued to the court and overruled. No evidence was produced in support of the motions for a new trial and no complaints were made of trial errors or instructions to the jury. Ralph E. Smith did not take an appeal after his motion for a new trial was denied.
The appellants, Ruth I. Smith and Randy E. Smith, have appealed to this court. The only question in this case is whether the verdict of the jury in favor of the appellant, Ruth I. Smith, and the verdict in favor of appellant, Randy E. Smith, are so grossly inadequate as to compel the granting of a new trial on the issue of damages only. In substance Ruth I. Smith and Randy E. Smith contend that the awards for the personal injuries to each are contrary to the evidence and that the jury ignored the proven elements of the damage, ignored the instructions of the court as to damages, and that the damages awarded are so grossly inadequate as to have been given under the influence of passion and prejudice as a matter of law.
In ruling on the motions for a new trial the trial judge in his memorandum opinion found that there was no evidence whatsoever from which the jury could find that either Ruth I. Smith and Randy E. Smith as passengers in the vehicle were in any way negligent prior to the collision. The only question before the trial court and also before this court is whether or not the awards of damages to Ruth I. Smith and Randy E. Smith were so inadequate that they were the result of passion and prejudice as a matter of law.
Insofar as the injuries and damages suffered by Randy E. Smith are concerned the record discloses that Randy was age 11 at the time of the accident and was sitting on the back seat of his father s vehicle. Following the accident he was taken to the hospital where X rays were negative for injuries. The evidence was that he was nervous and that his shins bothered him for about six weeks but that he suffered no permanent injuries or scarring of any kind. He saw Dr. William H. Crouch at the emergency room of the hospital on the day of the accident but never saw a doctor thereafter. He may have missed one day of school because of his concern for his mother’s injuries. There was no medical testimony presented to show the nature or extent of Randy E. Smith’s injuries. Randy’s medical expenses were in the total amount of $44. The jury awarded him $44 which was the exact amount of his medical bills.
The evidence as to the damages suffered by Ruth I. Smith was more extensive. As a result of the collision Ruth I. Smith suffered a broken right leg, a dislocation of the ankle joint and lacerations on her face. She was taken to the hospital shortly after the collision where her leg was placed in traction and later a body cast was required. During the course of her hospitalization she was subjected to four operations including the placing of steel screws and surgical pins in her leg bone and a bone graft was required. There was evidence that Ruth I. Smith suffered a great deal of pain and discomfort with her injuries which required a prescription for drugs. As a result of her broken leg and ankle dislocation she suffered some permanent injury to her leg. The fracture of the leg bone and facial lacerations are now well healed, but at the time of the trial she was still having pain in her anide, knee and back with some limitation of motion. At the time of the trial her medical expenses exceeded $10,300. Prior to the collision she was permanently employed in the Secretary of State’s Office in Topeka and had civil service tenure. She would have earned $10,000 in wages if she had been employed from the date of injury to the time of the trial. She had not been employed since the collision occurred and the medical testimony established that she would have difficulty in performing her previous work as a file clerk. Stooping and working with files would be painful for her. The jury awarded her as damages the sum of $22,750.
We have recognized the general rule that in a personal injury action inadequacy of damages constitutes a ground for the granting of new trial when a verdict, viewed in the light of the evidence as to the severity, duration, extent and permanency of the injuries, is so inadequate as to indicate passion and prejudice on the part of the jury. (Levy v. Jabara, 193 Kan. 595, 396 P. 2d 339; Henderson v. Kansas Power & Light Co., 188 Kan. 283, 362 P. 2d 60.) In reviewing a judgment of a trial court granting or refusing a new trial we have emphasized that the trial court has a wide discretion which will not be reversed unless a clear abuse of discretion is shown. (Dunn v. White, 206 Kan. 278, 479 P. 2d 215.)
In Henderson v. Kansas Power & Light Co., supra, Mr. Justice Price stated the basic rules to be applied as follows:
“In considering the questions 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 kind, involving personal injuries, there is no precise formula by which courts can be guided, and each case must largely be governed by its own facts as established by the evidence.” (p. 289.)
In applying these rules we should recognize that whether or not a particular verdict is excessive or inadequate is a matter on which there is a wide difference of opinion among members of the legal profession and the public at large. Some people are rather conservative in their views in this area while others are rather liberal. For this reason the litigants in personal injury cases in this state ordinarily seem to have a strong preference for trial by jury rather than trial to the court. Both the conservatives and the liberals seem to feel that the submission of this issue to a jury is more likely to bring an application of a community consensus in the award of damages. It follows that judges of this state should be reluctant to set aside a verdict of damages in a personal injury case on the ground of excessiveness or inadequacy unless there is some compelling reason. Otherwise the amount of the awards in personal injury cases in any judicial district would be controlled by the conservative or liberal bent of the trial judge.
In the case of Domann v. Pence, 183 Kan. 135, 325 P. 2nd 321, we recognized that, in the nature of things, it is impossible to formulate a hard and fast rule on the question of the amount of damages to be allowed in a personal injury action for the simple reason that determination of the matter necessarily depends upon the facts and circumstances of each particular case. There we said:
“Generally speaking, it may be said that no verdict is right which more than compensates, and none is right which fails to compensate. Pain and suffering have no known dimensions, mathematical or financial, and there is no exact relationship between money and physical or mental injury or suffering, and the various factors involved are not capable of exact proof in dollars and cents. For this very practical reason the only standard for evaluation is such amount as reasonable persons estimate to be fair compensation for the injuries sustained, and the law has entrusted the administration of this criterion to the impartial conscience and judgment of jurors, who may be expected to act reasonably, intelligently and in harmony with the evidence. (Syl. ¶[ 3.)
This is not to say however that there is no judicial control over jury verdicts in personal injury cases where the verdict is manifestly excessive or inadequate. Then the trial judge should see that an injustice is not accomplished through the verdict of the jury. It should be kept in mind, however, that the trial judge should not substitute his own judgment for that of the jury since otherwise trial by jury would be effectively denied.
As pointed out by the trial judge in his memorandum opinion there is no uniformity in the decisions as to when damages awarded in personal injury cases are excessive or inadequate as a matter of law. We have considered the extensive annotation of cases on this subject in 11 A. L. R. 3d 9 at 297. There we find cases upholding verdicts for similar injuries in amounts far less than the award to appellant, Ruth I. Smith, in the case at bar.
In Furstenberg v. Wesley Medical Center, 200 Kan. 277, 436 P. 2d 369, the size of the verdict, $765, coincided exactly with the plaintiff’s medical expense. There was however a denial by the jury of a counterclaim asserted by the defendant hospital for services rendered in the amount of $1,730.75. It was held that the verdict was not inadequate as a matter of law, because there was a question whether or not Mrs. Furstenberg’s foot troubles were a result of the accident.
In Timmerman v. Schroeder, 203 Kan. 397, 454 P. 2d 522, the plaintiff claimed damages for pain and suffering and for permanent injuries from lacerations about the face. An award of $357.95, the exact amount of the medical expense, was held to be inadequate by reason of the pain and suffering and permanent injury which were established by medical testimony. A new trial was granted on all issues because of a strong suspicion that inadequate damages were awarded as a compromise on the issues of liability and damages.
In Henderson v. Kansas Power & Light Co., supra, the amount of $5,000 was held to be inadequate as a matter of law where the plaintiff suffered severe bums, disfiguring permanent injuries and had medical expenses in the amount of $3,108 and loss of wages $1,287.
In Levy v. Jabara, supra, the plaintiff’s medical and hospital expenses exceeded $5,000. She suffered permanent disability of her entire leg of 25% to 50% and further suffered untold suffering and pain. The jury rendered a general verdict in the amount of $3,000 which was $2,000 less than her exact medical expenses. In Levy we held that the verdict of $3,000 returned for the plaintiff was so grossly inadequate to show the jury not only disregarded the trial court’s instructions but was influenced by passion and prejudice to the extent a new trial should be granted.
In the memorandum opinion denying the motions of the appellants, Ruth I. Smith and Randy E. Smith, for a new trial on the ground of the inadequacy of the awards the trial court reasoned as follows:
“In the instant case, no evidence was produced in support of the motions. The jury did observe the plaintiffs, Ruth I. Smith and Randy E. Smith, and did hear the evidence produced before them. This court cannot guess or surmise, how the jury arrived at its verdict. The jury, in the absence of evidence to the contrary, must be presumed to have acted fairly, reasonably, intelligently and in harmony with the evidence and instructions. The question is not whether this court would have granted more. As stated in the Henderson case, supra, courts must exercise great restraint in granting new trials based on the inadequacies of verdicts. The effect of the verdict as to Randy is that he is paid his medical expense and the jury believed he suffered no injury. The effect of the verdict as to Ruth is that she is paid her $10,300.00 medical expense, is paid two years salary, $10,000.00, and $2,450.00.
“Before the court may upset the verdict and grant a new trial on damages, the court must find passion and prejudice as a matter of law — in the legal sense — and this the court cannot do.
“The motions of Ruth I. Smith and Randy E. Smith for new trial for damages only are overruled.”
On the entire record in this case we cannot find that the trial court clearly abused its judicial discretion in denying a motion for a new trial to the appellants in this case. In accordance with the principles heretofore discussed in this opinion we should not substitute our judgment for either that of the jury or the trial judge in arriving at an award of damages to the appellants in these cases. Although the awards are definitely on the conservative side, there is nothing in the record to indicate the existence of passion or prejudice on the part of the jury in arriving at its verdict. The learned and able trial judge along with the jury heard all of the witnesses and concluded that the awards in these cases should stand. We cannot say he abused his discretion in so ruling.
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The opinion of the court was delivered by
Fatzer, C. J.:
This action was commenced by the appellant, Alliance Mutual Casualty Company (Alliance), for declaratory judgment to determine the rights and liabilities of various parties by reason of insurance policies issued. At issue is the question of coverage under the “omnibus clause” of a family automobile insurance policy issued by Alliance to Jack W. Seamens, which was in full force and effect on December 4, 1967. The policy was on a 1960 Lincoln Continental four-door automobile which was titled in the name of Jack W. Seamens and provided insurance coverage against bodily injury liability to third persons.
The facts are not in material dispute. On December 4, 1967, Deborah Reif, appellee herein, was an occupant in an automobile insured by Farm Bureau Mutual Insurance Company (Farm Bureau), also an appellee herein, when the automobile in which she was riding was hit from behind by the 1960 Lincoln Continental being driven by one Leroy Richard Harrison, Jr. (Harrison). Thereafter, an action was commenced in the Barton district court by Deborah Reif against Harrison to recover damages for injuries arising out of the collision. On January 26, 1970, judgment was granted in favor of Deborah Reif and against Harrison in the amount of $13,000. Alliance refused to defend Harrison in the personal injury action.
Subsequently, demand was made upon Harrison in behalf of Deborah Reif for satisfaction of the judgment. In an effort to determine the rights and responsibilities of the various parties, Alliance commenced this action in the Barton district court seeking declaratory relief and immunity from the judgment rendered in favor of Deborah Reif. The appellee Hartford Accident and Indemnity Company (Hartford) was joined as a party by virtue of a policy of insurance extending coverage to Harrison s stepfather — the named insured being Dean E. Wilson, d/b/a L. & W. Well Servicing Company. The appellee Farm Bureau was joined as a party defendant by virtue of the uninsured motorist coverage on the automobile in which Deborah Reif was an occupant at the time of the collision. Alliance contended in the district court it was under no obligation to extend liability coverage to Harrison, it being alleged the Continental was not being operated with the permission of the named insured, Jack W. Seamens. That allegation framed the primary issue before the district court, the question being whether liability protection was afforded to Harrison under the facts and circumstances hereafter detailed by virtue of Alliance’s policy issued to Jack W. Seamens. The “omnibus clause” of Alliance’s policy reads in pertinent part:
“Persons Insured. The following are insureds under Part 1:
“(a) with respect to the owned automobile,
“(1) the named insured and any resident of the same household,
“(2) any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission and
“(3) any other person or organization but only with respect to his or its liability because of acts or omissions of an insured under (a) (1) or (2) above;”
The evidence clearly established that Harrison was operating the Continental at the time of the accident with the express permission of George Seamens, the son of the named insured, Jack W. Seamens. The evidence further disclosed that while the Continental was titled in the fathers name, it had actually been purchased by George Seamens — the father purchased the automobile and the son reimbursed him in full. George referred to the Continental as his own automobile, and he was responsible for the normal maintenance of the car, his father expecting him to pay for such items as gas, oil and tire repair. In addition, George had free access to the use of the vehicle and his father knew that he referred to the vehicle as his own automobile, his father having placed no restrictions upon him as to where or when the automobile could be driven. The insurance coverage afforded by Alliance was actually purchased and kept current by the son since George reimbursed his father for the premiums of insurance. • In short, the record shows George had complete dominion and control over the Continental.
George had possession of the car for his use while he was attending college at Fort Hays State. The record shows the father denied ever giving express permission to his son to allow persons other than family members to operate the vehicle; in fact, the father had forbidden his son from authorizing others to operate the car prior to George’s going away to college. That Jack Seamens had given no express permission to Harrison to operate the Continental was corroborated by George, and both Harrison and Jack Seamens testified they had never met, let alone discussed the operation of the car before the accident.
While at college, George discussed the possibility of Harrison purchasing the car. George testified that a Continental Mark V “was not too much of a kids car,” and he wanted to sell it so that he could buy something “sporty.” One night while double dating, Harrison commented he liked the car and George offered to sell it for $800. George stated he let Harrison use the car the day of the accident because he thought Harrison wanted to buy it, and further testified Harrison had indicated a willingness to purchase but needed to get his stepfather’s approval. George testified Harrison had told him the day the car was loaned that he had called his stepfather and talked to him about buying the Continental. PI arris on said his stepfather felt it was a good deal but wanted Harrison to drive it home for an inspection. George also testified he let Harrison drive the car to see if it was a good car, and in his deposition, he stated, “who is going to buy a car that hasn’t driven it.” The record shows George had discussed selling the car with his father, and he testified he felt he had his father’s permission to sell the car. He stated he assumed he had his father’s permission to arrange a sale of the Continental.
In any event, Harrison was given express permission by George to drive the car. Refore the car was loaned, George did not indicate the existence of any restriction on the use of the automobile as to himself, nor did he place any restriction on Harrison’s use of the Continental. On the way to Hoisington to attend a funeral and to show the Continental to his stepfather, Harrison wrecked the car' in a collision with the automobile in which Deborah Reif was a passenger.
The action was tried by the court upon stipulations, admissions of the parties, and depositions, along with briefs submitted by the parties. In a memorandum decision the district court made extensive findings of fact which are summarized: That the money which was used to purchase the Continental was George’s money; that George had actual possession and control of the automobile even though it had been titled in the father’s name; that George was responsible for the maintenance of the car; that George referred to the Continental as his car and his father had placed no restrictions upon his use of the vehicle; that George and Harrison had discussed the sale of the vehicle and on the day of the accident George had such an interest in the vehicle that he could grant permission for its use; that George gave Harrison “express” permission to use the vehicle and Harrison believed the car belonged to George, and that no restriction was placed on the permission given Harrison for his use of the vehicle. In harmony with its findings, the district court concluded George Seamens was the “owner in fact” under the evidence and had such an interest in the vehicle that he had the legal right to give permission to Harrison to use the Continental. Judgment was entered by the district court that coverage was afforded to Harrison under Alliance’s policy of insurance issued to Jack Seamens.
We are of the opinion the judgment of the district court was correct although the court relied upon a wrong ground and assigned an erroneous reason for its decision. (Pierce v. Board of County Commissioners, 200 Kan. 74, 81, 434 P. 2d 858, and cases cited therein.)
The single question controlling this lawsuit is whether the Continental was being driven with the permission of Jack W. Seamens. This court follows the general rule that the permission referred to in the omnibus clause may be express or implied. It may be established by a showing of a course of conduct or relationship between the parties, which signifies acquiescence or consent of the insured. In addition, this court starts with the premise that an “omnibus clause” for reasons of public policy, is to be liberally construed. (Gibbs v. Central Surety & Ins. Corp., 163 Kan. 252, 260, 181 P. 2d 498; National Farmers Union Property & Cas. Co. v. Farm Bureau Mutual Ins. Co., 194 Kan. 93, 897 P. 2d 81; Maryland Cas. Co. v. American Family Insurance Group, 199 Kan. 373, 429 P. 2d 931.)
It is unnecessary to discuss and distinguish the many cases cited by the parties in their briefs. It is sufficient to say the court is of the opinion that, under the facts and circumstances as disclosed by the record and the findings of the district court, George had express and Plarrison had implied permission of the named insured to drive the Continental and that such use was covered by the omnibus clause of Alliance’s policy. No other conclusion may be drawn from the evidence than that if Jack Seamens did not expressly authorize George to permit Harrison to drive the Continental, he impliedly permitted Harrison to do so. George had absolute control and unfettered dominion of the automobile. He had discussed the possibility of selling the car with his father and the record shows George assumed his father had given approval to a sale if the price was right. The clear inference is that George could not arrange a sale without permitting Harrison to operate the automobile. Jack Seamens did not challenge the question of coverage until subsequent to the original judgment against Harrison when he received the summons in the case at bar. Moreover, the record shows that while Alliance denied coverage to Harrison, it partially paid the costs to repair the Continental. The facts and circumstances show Jack Seamens relaxed his prohibition to George insofar as the sale of the auto was concerned. The car was loaned upon the belief that a sale could be consummated, and it follows that Harrison was operating the car with the implied permission of the named insured.
We have serious doubts that the named insured’s admonition to George was intended to restrict the scope of coverage afforded by Alliance. A named insured, untutored in law and fearful that his consent might lead to his own liability for damages in excess of policy limitations, may well be tempered to invent a claim that he prohibited others to drive the vehicle, or to convert a precatory request into a binding prohibition. We may add that the fear of insurance policy cancellation might well have the same effect.
The insurance protection of the public, as well as the protection of all persons operating motor vehicles in this state, requires that the matter of coverage not be determined after an accident and controlled by a named insured’s sometimes discretionary recollections of private verbal admonitions given before an accident. The public interest requires the surrounding course of events be examined in a realistic manner. Courts, as well as the public interest, should not be controlled in situations of this type by verbal instructions that are actually unenforced and ofttimes ignored admonitions of an advisory character. (Standard Accident Ins. Co. v. Allstate Ins. Co., 72 N. J. Super. 402, 178 A. 2d 358; Odolecki v. Hartford Accident & Indemnity Co. 55 N. J. 542, 264 A. 2d 38; Allstate Insurance Co. v. Nationwide Mut. Ins. Co., 273 A. 2d 261 [Del. Super.]; Anno: Omnibus Clause—Consent, 4 A. L. R. 3d 10.)
In Cascade Ins. Co. v. Glacier Ins. Co., 156 Mont. 236, 479 P. 2d 259, it was said:
“In the instant case our facts reveal a contract of insurance, drawn by the insurance company, the terms of which are so fluid that it vests the insured with the authority to determine who shall be the beneficiary of the contract. It requires no notice or that any other condition be met. It can be extended to any number of persons at any time without any advance in price or consideration. The election to confer or withhold the benefit can be made orally after the occurrence of the accident; therefore, increased risk or expanded exposure could not be a factor for consideration. Rather, public policy would demand that only those the insured knowingly wished to exclude would be denied benefits, viewed at the time any restriction is placed on the use.
“Under our fact situation, it is highly questionable that there was an intention by the insured to deny insurance benefits as opposed to the protection and conservation of a valued asset at the time the instructions were given not to loan the automobile, any more than it could be reasonably assumed that the insured would intend to withhold benefits from the first permittee, Pat Roark, if he were prohibited die use of the automobile for 30 days for disciplinary purposes and this prohibition was violated and an accident occurred.” (p. 244.)
The use to which George put the Continental in the loan to Harrison was to enable him to drive it home so that his stepfather could make an inspection of the automobile. That use was a reasonable foreseeable one to be anticipated by Jack Seamens. Considering the family relationship between the named insured and George, together with the unfettered dominion and control over the automobile while George was attending college away from home, as well as the uncontroverted facts that George purchased the automobile with his own money and reimbursed his father for the insurance premiums, it necessarily follows the named insured clothed George with ostensible, if not actual, authority to engage in the simple transaction of permitting Harrison to operate the automobile for purposes of consummating a sale. This is particularly true when it was not shown that any claimed restrictions as to George’s use were within the knowledge of Harrison, nor were any restrictions placed upon Harrison’s use of the vehicle. In short, the facts and circumstances compel the conclusion the named insured impliedly permitted Harrison to use the automobile, rendering Alliance liable under its omnibus clause coverage.
The judgment is affirmed. | [
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Per Curium:
This is an appeal from the judgment of the district court of Reno County summarily denying appellant’s motions filed under K. S. A. 60-1507. The appellant’s conviction of burglary in the second degree by a jury was sustained by this court in State v. Miller, 204 Kan. 46, 460 P. 2d 564. He was represented by court appointed counsel on his appeal.
Two issues are raised in this appeal. First, the appellant makes complaint in his notice of appeal that he was subject to double jeopardy, contending that some of the same evidence used in his trial on a charge of drunkenness in the Hutchinson city court was used in his jury trial in this case. The use of such evidence in the city court relating to public intoxication would be no bar to the subsequent prosecution for burglary in the second degree in this case. (State v. McCarther, 198 Kan. 48, 422 P. 2d 1012.) Furthermore, the issue of double jeopardy cannot be raised for the first time in a proceeding under K. S. A. 60-1507. (Jackson v. State, 204 Kan. 823, 465 P. 2d 927.)
His second complaint is based on a contention of a denial of his constitutional right to counsel on his direct appeal. This claim is based solely on his allegation that there was a conflict of interest of his court appointed counsel. He makes no complaint that his direct appeal was improperly presented, or of the quality of the representation of his counsel.
A mere allegation of a conflict of interest of counsel is not sufficient to show a denial of appellant’s constitutional right. To constitute a denial of an accused’s constitutional right it must clearly appear that the representation by his counsel was wholly ineffective and inadequate. No such claim is made by appellant in this case. (Toland v. State, 200 Kan. 184, 434 P. 2d 550; Baker v. State, 204 Kan. 607, 464 P. 2d 212; Widener v. State, 210 Kan. 234, 499 P. 2d 1123.)
The appellant’s motions presented no issues that required an evidentiary hearing and the appointment of counsel for him.
The judgment is affirmed. | [
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Per Curiam:
This is an action by Charles T. Mayfield (plaintiff-appellant) to recover $5,221.67 on tibe theory he was a sub-contractor of the Roberts Construction Company, Inc. (defendant-appellee), having been hired by Guy Large as agent for the Roberts Construction Company, Inc. The amount was alleged to be due for electrical repairs made necessary by damages resulting from an explosion in the elevator of the Independent Grain Company of Belleville, Kansas.
The Independent Grain Company owes the Roberts Construction Company, Inc., $11,000 for repair to the structural damage.
Subsequent to the completion of the work it was disclosed the Independent Grain Company and Neil Johnson, its operator, were in financial trouble, and approximately five months after completion of the job Neil Johnson committed suicide. Insurance upon which the parties herein relied failed to materialize.
The trial court held the plaintiff failed to sustain the burden of proof, and it specifically found the plaintiff was not a sub-contractor of the Roberts Construction Co., Inc.
On appeal the record is examined and it is held the evidence is sufficient to support the finding and judgment of the trial court denying relief. (White v. Hutton, 205 Kan. 715, 472 P. 2d 223, and authorities cited therein.)
The judgment is affirmed. | [
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Per Curiam:
This is an appeal from the summary judgment denying the heirs of a deceased employee of an independent contractor the right to maintain an action against the defendant owners and operators of an oil and gas lease for negligent injuries resulting in the death of two employees on the basis that the exclusive remedy of the heirs of the deceased employees was under the Workmen s Compensation Act.
The facts before us appear in the form of pleadings, stipulations and depositions. Plaintiffs-appellants are heirs of Robert Anderson and James Voth, employees of Acid Engineers, Inc. Defendantsappellees are H. K. Beardmore, Heber Beardmore, Jr. and Edna Beardmore doing business as Beardmore Drilling Company, and E. L. Birmingham, Jr., W. N. Bartlett and Richard Hindery doing business as Birmingham-Bartlett Drilling Company. Pertinent facts follow.
Both Beardmore Drilling Company and Birmingham-Bartlett Drilling Company own and operate producing oil and gas leases in Hodgeman County, Kansas, near Hanston. In conjunction with their oil production in Hodgeman County, Beardmore and Birmingham-Bartlett, as joint venturers, owned and operated a salt water disposal well for purposes of disposing of salt water from the oil in the producing wells. The disposal well was located so that salt water produced by Beardmore and Birmingham-Barltett on adjacent leases could be drained to it by gravity flow. Under the arrangement between the defendants, Beardmore Drilling Company was responsible for operation of the salt water disposal well.
Beardmore Drilling Company had noticed a pressure build-up in the disposal well. A decision was made to acidize the well. Acidization is normally undertaken when the formation into which the salt water is being injected becomes clogged up. The acidization opens up the formation and facilitates the disposal of the salt water. Beardmore’s employees on occasion would acidize the wells when the use of a pressure pump was not necessary. However, when it was necessary to use a pressure pump in the acidization process, Acid Engineers, Inc., would be called to do the work.
On the day before the accident, Mr. Hazlip, Beardmore’s production superintendent, made arrangements with Bob Anderson, sales engineer for Acid Engineers, Inc., to bring 500 gallons of acid to the salt water disposal well, acidize the well, and then proceed to an oil well and do a “sand fracture”. Anderson was in charge of the Acid Engineers, Inc., crew that acidized the well. Jim Voth and Gary Grey were the other members of the crew. When the acidization crew arrived at the disposal well, Mr. Hazlip, Beardmore’s superintendent, told Anderson he wanted 500 gallons of acid pumped into the well and then displaced with salt water by the Beardmore salt water pump. Anderson agreed to the plan. The pump used to inject the salt water into the underground formation was located in the cellar approximately six or seven feet deep. Generally, the first step in the acidization procedure is to shut down that pump. Then a valve on the salt water fine is closed and a union opened on the salt water line between the pump and the well. A hose from the Acid Engineers’ truck is connected to the salt water line. After the valve is opened, the acid is pumped into the salt water line and to the well. Afterwards, salt water is pumped to displace the acid from the salt water lines and force it into the underground formation.
Anderson and Voth died as a result of inhalation of gas fumes while in the process of acidization of defendants’ salt water disposal wells. Their heirs brought these actions against Beardmore Drilling Company and Birmingham-Bartlett alleging that their negligence caused the death of Anderson and Voth.
After numerous depositions were taken and stipulations of fact entered into, defendants filed a motion for summary judgment contending that Robert Anderson and Jim Voth, employees of Acid Engineers, Inc., were “statutory employees” and by reason thereof, their remedy, or that of anyone claiming by, through or under them, was exclusively under the Workmen’s Compensation Act. After oral arguments and the filing of memorandum briefs, the trial court sustained defendants’ motion for summary judgment, and concluded that the deceased employees fell within the purview of K. S. A. 44-503 (a), that they were “statutory employees” and that the remedy under the statute was exclusive and that no one who claims by, through or under them has any common law action in negligence against the principal.
Subsequently, a summary judgment was entered for the defendants and plaintiffs perfected the instant appeal. The appellants contend that the deceased, Anderson and Voth, were employees of an independent contractor and the plaintiffs had the right to bring the action under the provisions of K. S. A. 44-504 as the injuries were caused by someone other than the employer. Appellees contend that Anderson and Voth were statutory employees of the defendants under the provisions of K. S. A. 44-503 in that the work being performed by the deceased was a part of the appellees’ trade or business necessarily inherent in and an integral part of defendants’ oil producing business.
It is well established in this state that if a workman can recover benefits from an employer under the Workmen’s Compensation Act for an injury, he cannot maintain a common law action against his employer for damages based on negligence. Watson v. Dickey Clay Mfg. Co., 202 Kan. 366, 374, 450 P. 2d 10; Wilburn v. Boeing Airplane Co., 188 Kan. 722, 729, 366 P. 2d 246.
The foregoing rule is applicable to employees of a contractor who has agreed to undertake a part of the trade or business of his principal. K. S. A. 44-503 (a) provides, in pertinent part:
“Where any person (in this section referred to as principal) undertakes to execute any work which is a part of his trade or business or which he has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be hable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him; . . .”
Since the defendants as principals in this case had undertaken to have work executed by an independent contractor, the only question we have for determination is whether the work to be performed under the contract is part of the principals’ “trade or business,” or an integral part thereof or usually performed by the principals.
This court has had many occasions to consider the phrase, “which is a part of his trade or business.” Many of these cases were considered and analyzed in Hanna v. CRA, Inc., 196 Kan. 156, 409 P. 2d 786, where it was found:
“This court has laid down two rather definite tests by which to determine whether the work covered by a contract is part of the principal’s trade or business, i.e., (1) is the work being performed by the independent contractor and the injured employee necessarily inherent in and an integral part of the principal’s trade or business? (2) is the work being performed by the independent contractor and the injured employee such as would ordinarily have been done by the employees of the principal?
“If either of the foregoing questions is answered in the affirmative the work being done is part of the principal’s ‘trade or business,’ and the injured employee[’]s sole remedy against the principal is under the Workmen’s Compensation Act.” (p. 159.)
The cases were again reviewed in a well annotated opinion of Watson v. Dickey Clay Mfg. Co., supra, p. 375; Bendure v. Great Lakes Pipe Line Co., 199 Kan. 696, 433 P. 2d 588, p. 700, and it is unnecessary to again re-analyze the authorities on which the opinions in the mentioned cases were based. The district court concluded the work involved in the acidization of the salt water disposal well was necessarily inherent in and an integral part of the appellees’ trade or business. We agree.
The defendants were engaged in the business of producing oil and gas and in maintaining and operating salt water disposal wells. There would be no question that in order for them to produce oil, it was necessary to separate the oil from the salt water and dispose of the salt water in the manner provided by statute, so as to prevent damage by reason of its escape onto the land or into streams of others. (See K. S. A. 55-121 and 55-901.) It therefore follows that the disposal of salt water is necessarily inherent in and an integral part of the oil producing business and normally performed by employees of defendants.
Inasmuch as the deceased, Jim Voth and Robert Anderson, were employees of Acid Engineers, Inc., when the acidization of the salt water disposal well was attempted, they were covered by the Workmen’s Compensation Act and were statutory employees of the defendants. Their exclusive remedy against the defendants was under the Workmen’s Compensation Act.
The plaintiffs also argue that the trial court should not have sustained the defendants’ motion for summary judgment because there are material issues of fact which have not been decided. This argument is without merit. In the instant case, the parties engaged in extensive discovery. In Hastain v. Greenbaum, 205 Kan. 475, 470 P. 2d 741, we held that a motion for summary judgment should be granted forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show there is no genuine issue of any material fact, and that the moving party is entitled to judgment as a matter of law. All the facts necessary for determination of the controlling question of law in this case are in the record.
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 by the petitioner from an adverse judgment in a proceeding instituted pursuant to K. S. A. 60-1507 on November 24, 1971, attacking the sentence imposed upon him by the Jackson County district court.
The three points raised by the petitioner in his motion all challenge the competence of his counsel both in the lower court and on appeal in the criminal action.
In June, 1967, the petitioner was tried before a jury for first degree murder of his wife. The appellant was found guilty and was sentenced to serve a term of life imprisonment in the Kansas State Penitentiary. An appeal taken from the decision and judgment of the trial court was affirmed by this court in State v. Winter, 203 Kan. 458, 454 P. 2d 491.
First, the petitioner contends he was deprived of due process of law because of ineffective assistance of counsel in the selection of the jury for his trial. Second, the petitioner asserts he was denied due process of law by the ineffective assistance of counsel in the appeal which was taken from the judgment and sentence rendered at his trial. And third, the petitioner contends he was deprived of due process of law because there existed a lack of substantial evidence to support his conviction.
When the criminal charges were initially filed against the petitioner, James E. Parmiter, an attorney regularly admitted to practice and residing in Holton, Kansas, was appointed to represent him. Mr. Parmiter stated to the petitioner that he did not feel competent to try a murder case. Thereupon the petitioner employed private counsel. He employed Sam A. Crow of Topeka, an experienced criminal lawyer. Testimony in the record by the petitioner, given at the evidentiary hearing granted on the 1507 motion, disclosed the petitioner employed Mr. Crow to try the matter and carry it through all the proceedings to the Supreme Court. Mr. Crow represented the petitioner and was present at the preliminary hearing and at the trial. In addition Mr. Crows partner Bill Honeyman (formerly with the U. S. Attorney’s office) and Mr. Parmiter sat at the counsel table and assisted in the selection of a jury and at the petitioner’s trial.
The selection of the jury consumed approximately three days during which time the petitioner conferred with and assisted his attorneys in the selection of the jury.
The petitioner contends two jurors who served had previously been connected with Jackson County. The foreman of the jury had served as a county commissioner of Jackson County, and another juror had been an employee of Jackson County. Because of their acquaintance with the prosecuting attorney and the sheriff of Jackson County, and their friendliness towards them, the petitioner asserts they were partial to the State’s case, therefore unable to render an impartial decision. As a result the petitioner contends he was denied a fair and impartial trial in violation of his constitutional rights.
The petitioner relies upon Anderson v. Peyton, 209 Va. 798, 167 S. E. 2d 111, for the proposition that the decision as to who should be stricken from a jury panel is peculiarly a matter in which counsel must use his own discretion and judgment. Based thereon the petitioner contends Mr. Crow was negligent in permitting the two members of the jury who had been previously associated with Jackson County to sit as jurors in the cause, and that such negligence resulted in prejudice to his case thereby denying him a fair and impartial trial in violation of his constitutional rights. The Anderson case upon which the petitioner relies does not uphold him. There as here counsel representing the defendant exercised his own discretion and judgment, and there was no evidence from which prejudice on the part of the jurors could be inferred.
The record here discloses that no evidence whatever was presented at the hearing on the motion to show any of the jurors were prejudiced against the petitioner. The trial court found no evidence whatever had been presented at the hearing to sustain the petitioner’s charge. Other vague complaints are made concerning the jury but they have no foundation in the record.
The second point asserted by the petitioner concerns his employment of counsel. The petitioner claims Mr. Sam A. Crow of Topeka, the attorney of record for the petitioner in the criminal action, agreed to represent him at all stages of the proceedings, including his appeal from the trial. The record discloses James E. Parmiter of Holton, Kansas, presented die petitioner’s appeal to the Supreme Court. There is evidence in the record made at the hearing on the 1507 motion that Mr. Crow did in fact perfect the appeal and assisted in the preparation of the brief presented on appeal. His name however did not appear on the briefs presented to the Supreme Court.
The petitioner contends because Mr. Parmiter stated he did not feel personally qualified to try a murder case, that he was not qualified to perfect and present the appeal to the Supreme Court. The petitioner relies on State v. Kane, 52 Hawaii Rep. 484, 479 P. 2d 207, for the proposition that the guarantee of assistance of counsel will not be satisfied by the mere formal appointment of an attorney. There the Supreme Court of Hawaii said, “The defendant’s right to the effective representation of counsel necessarily imposes upon the trial judge a corollary duty to protect that right whenever its enjoyment appears to be in doubt.” (p. 487)
Although the petitioner argues his situation was similar to that in the Kane case, we fail to see any factual similarity. The petitioner contends he had no faith in Mr. Parmiter to perfect his appeal, particularly in view of the latter’s statement that he did not feel qualified to try a murder case. It is argued this raises sufficient doubt with the court that Mr. Parmiter was unable to give the petitioner effective assistance of counsel on his appeal from the trial. (Citing, Bentley v. State of Florida, 285 F. Supp. 494 [1968].)
The trial court entertained no doubt that petitioner was well represented by three attorneys at the trial, all of whom were regularly admitted to practice in this state and in good standing. Mr. Parmiter had served as county attorney in Jackson County and has been practicing for many years. When Mr. Parmiter said he didn’t feel qualified to try the murder case, he did not have reference to the appeal. He assisted Mr. Crow and Mr. Honeyman during the trial of the case, he knew the background of the case and was effective in perfecting the appeal. (See, State v. Winter, supra.)
For his third point the petitioner asserts his attorney failed to introduce pertinent evidence and testimony in the case which would have been beneficial to hiim He contends this point goes to the adequacy of representation by counsel.
The petitioner first contends a transcript of the testimony of Dr. John Lattimore should have been read at the trial. Dr. Lattimore passed away between the time of the preliminary hearing and the trial, and Dr. Woods, a neurosurgéon at thé Menninger Foundation who assisted in the autopsy, testified at the trial. Dr. Woods assisted Dr. Lattimore in making an autopsy of the body of Mrs. Winter. Dr. Woods testified at the trial and said the bullet wound to Mrs. Winter’s head was the direct cause of her death. The transcript testimony of Dr. Lattimore given at the preliminary hearing was to the effect that the wound alone possibly would not have killed a person, if it had not been for the blood that seeped around the base of the brain — that it is not from the bullet wound directly that the person dies. It is the irritation that occurs around the base of the brain.
Mr. Crow refused to submit the transcript testimony of Dr. Lattimore on behalf of the defendant at the trial.
At the hearing on the petitioner’s 1507 motion he asserts for the first' tuné that he was shooting at a gun in the hand of his wife, whéri thé bullet accidentally struck her in the head. There is no evidence whatever in the record of the trial of the criminal action that the petitioner’s wife had a gun in her hand when the shooting occurred. This uncorroborated statement of the petitioner in the record is' contrary to his testimony at the trial and was given no credence by the trial court.
The trial court in announcing its decision after the hearing on the motion said:
“. . . The Court remembers this trial. I was the trial judge at the trial. And the Court remembers it quite well. This trial, as I recall, lasted three days. It took three days to select the jury and three days to try the case after the jury was selected. This is my recollection. I think the verdict came in in the middle of the afternoon on a Saturday. We started Monday and finished Saturday, as I recall. The defendant was represented by Mr. James E. Parmiter, Mr. Same [sic] Crow of Topeka and Mr. Bill Honeyman from Topeka. Mr. Parmiter is of Holton. Mr. Crow and Mr. Honeyman are known to this Court to be competent, able attorneys, experienced in the trial of cases and experienced in the trial of criminal cases. Throughout the preliminary matters, prior to the actual trial a multitude of motions were lodged in this case and the Court heard hearing after hearing after hearing of all kinds of motions. We had a habeas corpus hearing even, as I recall. Every conceivable defense that I could think of, and I think that Mr. Crow could think of was raised. As to the selection of the jury, the number of thirty-six was passed for cause. Each sidé then struck twelve. This is the way we proceed. During the selection of the jury the Court observed, personally, Mr. Winter discussing the strikes before they were made on behalf of the defendant. The defendant had twelve chances to strike, the same as the State did. Now, the Court recalls that Dr. Lattimore died after testifying in the preliminary hearing and before the trial of the case in this court. It is inconceivable to me to see how Dr. Lattimore’s testimony would be helpful to Mr. Winter. It is absolutely inconceivable to me to see how this would be helpful. I think Mr. Crow would have been, well, let’s say it this way, I think he would have been out of his mind to put Dr. Lattimore’s testimony on on behalf of the defendant. Now, this case was vigorously defended. There were many post-trial motions filed, which Mr. Crow and Mr. Honeyman and Mr. Parmiter participated in. Now, going back to the trial again, Mr. Winter says that he complains a little bit about the jury didn’t deliberate very long. I don’t remember, except it seems to me it was somewhere in the neighborhood of one hour. It wasn’t a very long deliberation; this is true. But it seems to me the evidence in this case was overwhelming against Mr. Winter. There were several eye witnesses to this matter. Now, Mr. Winter says now that he was shooting at a pistol that was in his wife’s hand. His evidence, as I recall, he took the stand in this case, and as I recall it, he complained he had a blackout. This is my recollection of his evidence; he blacked out; and this was part of the defense. The jury convicted, found the man guilty, and as I say, the evidence was overwhelming pointing to guilt. . . .”
ABA Standards for Criminal Justice, Defense Function, § 3.1 (b), P. 157, pertaining to the establishment of the lawyer-client relationship, provides:
“The conduct of the defense of a criminal case requires trained professional skill and judgment; therefore, the technical and professional decisions must rest with the lawyer without impinging on the right of the accused to make the ultimate decisions on certain specified matters, as delineated in section 5.2.”
ABA Standards for Criminal Justice, Defense Function, § 5.2, P. 162, reads:
“5.2 Control and direction of the case.
(a) Certain decisions relating to the conduct of the case are ultimately for the accused and others are ultimately for defense counsel. The decisions which are to be made by the accused after full consultation with counsel are: (i) what plea to enter; (ii) whether to waive jury trial; (iii) whether to testify in his own behalf.
(b) The decisions on what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.
(c) If a disagreement on significant matters of tactics or strategy arises between the lawyer and his client, the lawyer should make a record of the circumstances, his advice and reasons, and the conclusion reached. The record should be made in a manner which protects the confidentiality of the lawyer-client relation.”
K. S. A. 1971 Supp. 7-125, DR7-101 (B) (1) provides that in his representation of a client, a lawyer may, where permissible, exercise his professional judgment to waive or fail to assert a right or position of his client.
The Aid to Indigent Defendants Act (K. S. A. 1971 Supp. 22-4501) provides for a panel of lawyers who may be appointed to represent “indigent” defendents and by implication allows the court to place thereon only selected lawyers. But, there is no law in Kansas that otherwise establishes a standard of competence for defense lawyers.
The adequacy and effectiveness of an attorney’s services on behalf of an accused in a criminal action must be gauged by the actual representation afforded the accused in its totality. To be a denial of an accused’s constitutional rights it must clearly appear that the representation of the accused was wholly ineffective and inadequate. (State v. Richardson, 194 Kan. 471, 487, 399 P. 2d 799; and Widener v. State, 210 Kan. 234, 236, 499 P. 2d 1123.) The burden is on the petitioner to show the representation by his attorney was so incompetent and inadequate that the total effect was that of a complete absence of counsel. (Shores v. State, 195 Kan. 705, 709, 408 P. 2d 608; Toland v. State, 200 Kan. 184, 434 P. 2d 550; and Baker v. State, 204 Kan. 607, 614, 464 P. 2d 212.)
The code of professional responsibility provides that a lawyer shall not handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it. (K. S. A. 1971 Supp. 7-125, DR6-101 [A] [1].)
The general rules concerning competence of counsel seem to have originated insofar as the federal constitution is concerned in the federal circuit courts of appeal. The rule is basically that the incompetency of private counsel for the defendant in a criminal prosecution is neither a denial of due process under the Fourteenth Amendment, nor an infringement of the right to be represented by counsel under either the state or federal constitution unless the attorney’s representation is so lacking that the trial has become a farce, or a mockery of justice, or was shocking to the conscience of the reviewing court, or the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation, in which case the judgment, violating either the Fifth, Sixth or Fourteenth Amend ment to the federal constitution, or a provision of a state constitution, is void. (Scalf v. Bennett, 408 F. 2d 325 [1969], and authorities cited therein; and see Stem v. Turner, 370 F. 2d 895 [1966]; Pope v. United States, 287 F. Supp. 214 [1967]; Bentley v. State of Florida, supra; and 74 A. L. R. 2d 1397.)
In United States v. Ragen, 166 F. 2d 976 the court said:
“Whenever the court in good faith appoints or accepts the appearance of a member of the bar in good standing to represent a defendant, the presumption is that such counsel is competent. Otherwise, he would not be in good standing at the bar and accepted by the court. The constitutional requirements have been met as to the necessity for counsel.” (p. 980)
A proceeding on a motion to set aside a sentence pursuant to K. S. A. 60-1507 is a civil proceeding and the burden of proof is upon the petitioner. (Jackson v. State, 204 Kan. 823, 465 P. 2d 927.) Mere conclusionary contentions of a petitioner for which no evidentiary basis is stated or appears are not sufficient basis for relief from conviction. (Wolfe v. State, 201 Kan. 790, 443 P. 2d 260.) The trial court in the hearing held on January 7, 1972, found the petitioners three trial counsel adequately, effectively and competently defended him during the trial of the criminal action. We have scrutinized the entire record with care only to arrive at the same conclusion as the district court. On appeal in the criminal action Mr. Parmiter adequately, effectively, fairly and competently represented the petitioner based upon the foregoing law and gauged by the totality of his representation.
The petitioner has faffed to sustain the burden of proof cast upon him to show that he is entitled to the relief requested in his motion attacking the sentence pursuant to K. S. A. 60-1507.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
Jack R. Gunzelman was tried and convicted for the crime of battery of a law enforcement officer (K. S. A. 1971 Supp. 21-3413) and for the crime of making a terroristic threat against another person (K. S. A. 1971 Supp. 21-3419). He appeals from conviction and sentence thereon.
Appellant attacks the constitutionality of the terroristic threat statute, claiming it is vague, indefinite and uncertain. In addition, he attacks his conviction as to both charges on the ground of prejudicial trial error relating to conduct of the county attorney in cross-examining the appellant regarding prior convictions.
The charges arose from an incident which occurred at the home of a highway patrol officer, Bobby L. Norton, in Stockton, Kansas, on the evening of April 5, 1971. A brief recitation of the facts will be helpful. Appellant was in the roofing business and hired employees to drive his roofing trucks. Patrolman Bobby L. Norton had issued a traffic ticket to one of the truck drivers for not having a drivers license. At 9:30 that evening Norton received a call on the telephone from appellant who claimed Norton was picking on the drivers. Appellant warned the patrolman to quit stopping his vehicles. No violence was threatened over the telephone. Later that same evening the appellant and his driver appeared at the patrolman s front door. The following took place on or near the front porch of the home.
The patrolman testified that the appellant was belligerent when he and his driver, Aguilera, came to see the patrolman. The patrolman’s wife answered the door bell, then she retreated inside the house. Her husband stepped out on the porch. It was after 9:30 P. M. and the children were in bed. Appellant accused the patrolman of picking on his drivers and said, “I am warning you for the last time that you are not pulling my drivers over for no reason and arresting them; . . .” By this time the patrolman’s wife was looking out of a darkened bedroom window and was worried about her husband’s safety. Appellant said, “You have a wife and family. You had better give some thought to that. You are gone a lot of nights. Where is your bedroom? I will be back.” Accord ing to the patrolmans testimony appellant walked around and peered into a window south of the porch. '
The patrolman told appellant to leave. Appellant turned toward the street. The patrolman turned to go up the steps to the porch. He heard a movement and had partially turned back toward the street when he was hit in the rib cage by the appellant’s fist. He fell against the iron railing of the porch and as he straightened up he received a direct blow in the right eye. Appellant then swung a wild blow which failed to connect, and he returned to his truck. The patrolman looked around him for the driver Aguilera, did not see him but decided to go into the house. The patrolman said to the appellant, “Jack, you know you have had it.” The appellant replied, “Go ahead and arrest me. I have money to fight it.” The patrolman went into the house and appellant drove off in his truck.
The patrolman’s wife had heard the iron railing on the porch rattle when appellant knocked the patrolman back against the railing. She was able to hear part of the conversation including, “I am warning you for the last time. You had better quit picking on my men.” She saw appellant shaking his finger at her husband. She was frightened. She saw the man lunge at her husband and heard the blow. She called the sheriff on the telephone. The appellant was arrested later that night.
The terroristic threat statute under which appellant was charged reads as follows:
“A terroristic threat is any threat to commit violence communicated with intent to terrorize another, or to cause the evacuation of any building, place of assembly or facility of transportation, or in wanton disregard of the risk of causing such terror or evacuation.
"A terroristic threat is a class E felony.” (K. S. A. 1971 Supp. 21-3419.)
According to a comment by the judicial council, which comment appears below the statute, this is a new provision designed to fill a gap in the law. The idea was drawn from the American Law Institute’s Model Penal Code, § 211.3. This section of the Model Penal Code reads:
“A person is guilty of a felony of the third degree if he threatens to commit any crime of violence with purpose to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.” (MPC § 211.3)
The American Law Institute’s comments, which follow this section of the code, may be helpful. In part they read:
. . Where, as in the present section, the object is to prevent serious alarm for personal safety, such as may arise from letters or anonymous telephone calls threatening death, kidnapping or bombing, the class of threats can be narrowly defined, and the gravity of the offense can be related both to the seriousness of the threat and the disturbing character of the psychological result intended or risked by the actor. . . .” (MPC §211.3)
Under the constitutional attack lodged by the appellant, he contends the statute was enacted to proscribe threats in connection with campus unrest, fire and bomb threats to public buildings and threats which arise from mob violence. He argues the statute is vague, indefinite and uncertain if it is extended to terroristic threats to person or property of an individual as it does not advise die ordinary citizen of the required nature of the proscribed threats.
This constitutional attack is based on Section 10, Bill of Rights, Constitution of the State of Kansas; and Amendment 14, § 1, Constitution of the United States.
A criminal statute which either forbids or requires an act in vague terms that men of common intelligence must guess at its meaning and differ as to its application lacks the first essential of due process of law. A statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties. (State v. Blaser, 138 Kan. 447, 26 P. 2d 593; State v. Rogers, 142 Kan. 841, 52 P. 2d 1185; State v. Carr, 151 Kan. 36, 98 P. 2d 393.) In creating an offense which was not a crime at common law the legislature must make the statute sufficiently certain to show what was intended to be prohibited and punished, otherwise it will be void for uncertainty. But reasonable certainty is all that is required, and liberal effect is always to be given to the legislative intent in view of the evil to be corrected. (State v. Davidson, 152 Kan. 460, 105 P. 2d 876; State v. Hill, 189 Kan. 403, 369 P. 2d 365, 91 A. L. R. 2d 750.) These rules have been recognized and applied in our more recent cases. See Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, at page 765, 408 P. 2d 877, where it was said the test to determine whether a criminal statute is void by reason of being vague and ambiguous is— does the language convey a sufficient definite warning as to the proscribed conduct when measured by common understanding and practice? If the statute does it is not void for vagueness. See, also, State, ex rel., v. Fairmont Foods Co., 196 Kan. 73, 78, 410 P. 2d 308, and State v. Johnson, 196 Kan. 208, 211, 410 P. 2d 423.
The main thrust of appellant’s constitutional argument is based upon a failure by the legislature to define the words “threat” and “terroristic”. In the general definition section of the Kansas Criminal Code (K. S. A. 1971 Supp. 21-3110) threat is defined as follows, “(24) ‘Threat’ means a communicated intent to inflict physical or other harm on any person or on property.” Terrorize is not defined therein, so it must be measured by what men of common intelligence would consider it to mean.
Webster’s Third New International Dictionary (Unabridged) says to terrorize means to coerce by threat or violence, to rule by intimidation.
The few other jurisdictions which have dealt with “terroristic threat” statutes have had no trouble in finding the common meaning of the term. In Masson v. Slaton, 320 F. Supp. 669 (N.D. Ga. 1970) an action was brought to enjoin a prosecution under the Georgia Criminal Code, § 26-1307 on the ground the statute was unconstitutionally vague. The statute provided: “A person commits a terroristic threat when he threatens ... to bum or damage property with the purpose of terrorizing another. . . .” The court found nothing vague or indefinite in the statute. In Armstrong v. Ellington, 312 F. Supp. 1119 (W.D. Tenn. 1970) the court dealt with T.C.A. § 39-2805. Although the court struck part of the statute as unconstitutionally vague, it upheld the portion of the statute which imposed punishment upon “Any person, . . . who shall willfully prowl or travel or ride or walk through the country or town ... for the purpose of . . . terrorizing any citizen or citizens of the state, or for the purpose of causing, through threats . . . any citizen or citizens of this state to do or not to do any lawful thing or to do any unlawful thing, . . .” On page 1126 of the reported case the court defined terrorizing as follows:
“. • ■ It means to reduce to terror by violence or threats, and terror means an extreme fear or fear that agitates body and mind.' We hold that ‘terrorizing’ is specific enough and within the appropriate area in which the State of Tennessee might protect the citizens even though expression might be involved.”
(In accord Baxter v. Ellington, 318 F. Supp. 1079 [E.D. Tenn. 1970].)
Given the type of limiting definition imposed by the Tennessee court, K. S. A. 1971 Supp. 21-3419 would appear to survive a constitutional challenge of vagueness. We note the trial court in our present case did not define the term “terrorize” in its instructions, but no objection to the instruction was made by the appellant. The pattern criminal instruction in PIK Criminal 56:23 adequately covers the statute except for the definitions of “threat” and “terrorize”.
The word “threat” as used in K. S. A. 1971 Supp. 21-3419 means a communicated intent to inflict physical or other harm on any person or on property. (K. S. A. 1971 Supp. 21-3110 [24].) The word “terrorize” means to reduce to terror by violence or threats, and terror means an extreme fear or fear that agitates body and mind.
Given limiting definitions for the words “threat” and “terrorize”, as those terms are understood by men of common intelligence, K. S. A. 1971 Supp. 21-3419 proscribing terroristic threats survives any constitutional challenge for vagueness and uncertainty under Section 10, Rill of Rights, Constitution of the State of Kansas, and under Amendment 14, § 1, Constitution of the United States.
Although the statute may have been directed at campus unrest, fire and bomb threats to public buildings and acts of mob violence the main elements of the offense are threats communicated with a specific intent to terrorize another. The wording of the statute appears sufficient to proscribe such threats whether directed generally against one or more persons and regardless of the purpose which the terrorist has in mind to accomplish.
Appellant’s next point of error relates to conduct of the county attorney in cross-examining the appellant regarding prior convictions.
After the state rested its case the appellant took the witness stand in his own behalf. After testifying as to his version of the incident he was cross-examined by the county attorney in the following manner:
“Q. Have you been arrested before on the charge of assault and battery?
“Mr. Shultz [defense counsel]: I object to that as incompetent, irrelevant, and immaterial, and beyond the scope.
“The Court: Oh, I think this at least is preliminary. On that basis, Ladies and Gentlemen of the Jury, any inquiry in this case regarding any previous crimes that the man may have committed must be limited entirely and exclusively to his credibility as a witness. It shouldn’t be considered by you in any way, shape, or form as any evidence as to his guilt or innocence in this case. At no time is it to be considered by you as reflecting on whether or not he might be guilty of the crimes in this case. It would be permitted to strictly for the purpose of showing credibility of the witness, in that capacity only. You may answer the question.
“A. Is he talking about the last hundred years?
“The Court: Any time in your lifetime.
“A. Yes.
“Q. What was the last time?
“A. Seven years—
“Mr. Shultz: I will object to that.
“The Court: It has been answered. Overruled.
“Q. Where was that at?
“A. At Hays.
“Q. Prior to that, what was the next time before that?
“Mr. Shultz: I am going to object to this, Your Honor. It is going beyond the state of credibility.
“The Court: I think you are correct. I will sustain the objection.
“Q. Mr. Gunzelman, have you ever been convicted here in this county of assault and battery?
“A. I am trying to think. I have had two or three traffic tickets in the last four or five years. I don’t believe so, no.
“Q. If I told you that on November 6, 1961, you were convicted here in the County Court of Rooks County of assault to one Warren Hoffman in the Hotel Coffee Shop in the City of Plainville; on the same day, October 26, 1961, on the same charge you were found guilty of assaulting, beating and wounding Mrs. Ava Oderldrk at the Shaw Hotel Coffee Shop, in the City of Plainville. Would you believe that to be correct?
“A. There was a roofer working for me charged in this case.
“Q. This is the matter of State of Kansas vs. Jack R. Gunzelman—
“Mr. Shultz: That is not the way to present such a record, Your Honor?
“The Court: Sustained.
“Q. Will you answer my question whether you remember about that case?
“A. Well, I do know of its being brought up. You are going back years and years.
“The Court: Just answer the question.
“A. That was in 1955, wasn’t it.
“Q. Now, you remember. Did it involve a cook and waitress—
“Mr. Shultz: I am going to object.
“The Court: Sustained. The Jury will disregard both the last question and answer. It is not evidence in this case. Don’t consider it.
“Q. You remember that case, then, don’t you?
“Mr. Shultz: Objection—
“The Court: Sustained.
“Q. Mr. Gunzelman, I didn’t ask about anyone — the one prior I asked about—
“Mr. Shultz: I object; this is argumentative.
“The Court: Disregard the comment from the County Attorney; it is highly improper.
“Q. In all these cases that are assault and battery cases, you have been charged with assault and battery, and in some of them you pled guilty to. Do you admit this that you pled guilty?
“Mr. Shultz: I object to the form of the question.
“Q. Did you plead guilty to some of the assault and battery charges?
“The Court: That is too indefinite. Sustained.
“Q. Do you recall how many times you have been convicted of these kind of charges?
“A. No.
“Q. Would you say it has been quite a number of times, a few times, give times?
“Mr. Shultz: I object to the form of the question, Your Honor. I believe this is highly improper?
“The Court: I think it has been fully covered, too. Objection sustained.
“Mr. Shultz: May we approach the bench just a minute. Without any argument I want the record to show a renewal of my motion that I made at the close of the State’s evidence is now made at the close of all the evidence.
“The Court: It is overruled.”
The state insists prior convictions were admissible under K. S. A. 60-455 and that no error was committed since the court refused to admit the testimony.
K. S. A. 60-455 reads:
“subject to section 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed another crime or civil wrong on another specified occasion but, . . . such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
Evidence of unrelated offenses is generally inadmissible under the statute. The requirements of the statute should be strictly enforced. To justify departure from this general inadmissibility the trial court should conduct a hearing in the absence of the jury to determine probative value as to one or more of the eight elements to which such evidence must be relevant, i. e. motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. When in the discretion of the court there is a pattern, similarity or connection between the facts surrounding the prior offense and the one with which the accused is presently charged which has relevance in proving specific matters in issue, the prior conviction may then be admitted. Such evidence may only be admitted with proper limiting instructions. (See State v. Motley, 199 Kan. 335, 337, 338, 430 P. 2d 264, and State v. Taylor, 198 Kan. 290, 424 P. 2d 612.) The state did not attempt to have the evidence of prior offenses admitted in accordance with K. S. A. 60-455.
In addition, evidence of other offenses may not be elicited for the first time on the cross-examination of the accused for the pur pose of attacking his character or credibility unless he has first introduced evidence of his good character (K. S. A. 60-447) or introduced evidence admissible solely for the purpose of supporting his credibility. (K. S. A. 60-421.)
K. S. A. 60-447 provides:
“. . . (b) in a criminal action evidence of a trait of an accused’s character as tending to prove his guilt or innocence of the offense charged, . . . if offered by the prosecution to prove his guilt, may be admitted only after the accused has introduced evidence of his good character.” (Emphasis added.)
K. S. A. 60-421 reads:
“Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his credibility. If the witness he the accused in a criminal proceeding, no evidence of his conviction of a crime shall be admissible for the sole purpose of impairing his credibility unless he has first introduced evidence admissible solely for the puipose of supporting his credibility.” (Emphasis added.)
At no time at the trial did appellant introduce evidence of his own good character or evidence to support his own credibility and the state may not be permitted to attack his character or credibility in a criminal trial. (State v. Motley, supra; State v. Wright [dissenting opinion], 203 Kan. 54, 59, 453 P. 2d 1.)
In State v. Roth, 200 Kan. 677, 438 P. 2d 58, this was specifically pointed out. In Roth this court disapproved statements in the case of State v. McCorvey, 199 Kan. 194, 428 P. 2d 762, and held such was not proper cross-examination since it was not responsive to testimony given on direct examination or relevant thereto and was proscribed by our statutes. For later cases see State v. Cantrell, 201 Kan. 182, 187, 440 P. 2d 580, cert. den. 393 U. S. 944, 21 L. Ed. 2d 282, 89 S. Ct. 315; State v. DeLespine, 201 Kan. 348, 351, 440 P. 2d 572; State v. Jackson, 201 Kan. 795, 798, 443 P. 2d 279, cert. den. 394 U. S. 908, 22 L. Ed. 2d 219, 89 S. Ct. 1019; State v. Wright, 203 Kan. 54, 55, 453 P. 2d 1; and State v. Pappan, 206 Kan. 195, 197, 477 P. 2d 989.
In view of the comments of the trial judge when the cross-examination was first initiated and the persistent efforts of the county attorney by which the jury was advised of appellant’s prior convictions prejudicial error occurred in the trial of this case and it must be sent back for a new trial.
We note that appellant was charged with aggravated battery (K. S. A. 1971 Supp. 21-3415) and convicted of the lesser offense of battery (K. S. A. 1971 Supp. 21-3413) of a law enforcement officer. As to these two offenses a conviction of the lesser offense is an acquittal of the greater degree of the offense. (Green v. United States, 355 U. S. 184, 2 L. Ed. 2d 199, 78 S. Ct. 221, 61 A. L. R. 2d 1119; Price v. Georgia, 398 U. S. 323, 26 L. Ed. 2d 300, 90 S. Ct. 1757; Cox v. State, 205 Kan. 867, 873, 473 P. 2d 106; and State v. Pierce, et al., 208 Kan. 19, 36, 490 P. 2d 584 [dissenting opinion].)
The judgment and sentences are reversed and the case is remanded with directions to grant the appellant a new trial on the lesser included offense in count one, battery of a law enforcement officer, and on the offense of committing a terroristic threat as charged in count two of the information. | [
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Per Curiam:
This is an appeal from a summary judgment entered by the trial court upon defendants motion. Plaintiff sued defendant to recover damages for injuries received when defendant’s automobile, in which plaintiff was riding, was involved in a collision.
It is undisputed that plaintiff was a guest in defendant’s car. Defendant was taking one of her children to the K. U. Medical Center in Kansas City. As they were traveling north on U. S. Highway 59, a few miles north of Garnett, with defendant’s children asleep in the back seat, a car about one-quarter of a mile ahead of defendant’s vehicle began to signal for a left turn off the highway and into a driveway. The highway is straight, smooth, wide open, and on a slight upgrade to the north. At the same time, a third car was approaching from the north, about one-quarter of a mile beyond the turning car. Defendant pulled into the left lane to pass the slowing vehicle. Plaintiff warned defendant of the approaching car. Defendant attempted to pull back into her lane, but did not succeed. The three cars collided.
A pretrial conference was held on November 13, 1970. Depositions of plaintiff and defendant were taken on January 8, 1971. No other depositions were taken although plaintiff stated there were two eyewitnesses to the collision. Defendant’s motion for summary judgment was filed on April 27, 1971, and orally argued on June 2, 1971. The trial court’s memorandum decision sustaining the motion was filed on June 18, 1971. Plaintiff did not file opposing affidavits, or any affidavits under K. S. A. 60-256 (/). Ample time was per mitted plaintiff to complete discovery and the record does not show that counsel asked for additional time to obtain affidavits or depositions as evidence to support plaintiffs position opposing summary judgment.
Both plaintiff and defendant testified that plaintiff never complained of defendant’s manner of driving. Plaintiff said:
“. . . I wouldn’t think defendant would deliberately drive down the road to hurt me or her children, and when she became aware of the oncoming car she tried to turn back into our own lane. Defendant has never failed to heed any warnings or suggestions I have given her before.”
The trial court, after consideration of the record at hand, ruled:
“. . . [TJhere is no genuine issue as to the material fact of wanton conduct on the part of the defendant. Granting plaintiff every reasonable inference, the fact of-watonness is not remotely supported.”
In Gray v. Ray Gill, Frontier Industries, Inc., 208 Kan. 95, 490 P. 2d 615, this court said:
. . [W]hen, as here, a party makes no suggestion to the trial court of any additional facts tending to support his-position, he cannot escape summary judgment, if otherwise proper, on the mere hope that further discovery may reveal evidence favorable to his case. (Citing cases.) We are satisfied from the overall record that plaintiff is simply in no position now to challenge the order of summary judgment on the ground that it was prematurely granted.” (p. 97.)
The record shows no abuse of discretion by the trial court. Plaintiff’s admissions bar her recovery.
The judgment is affirmed. | [
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Per Curiam:
This is an appeal from the overruling of a motion to vacate sentence filed pursuant to K. S. A. 60-1507.
The appellant was tried and convicted in 1966 of burglary and larceny in connection with the burglary. He was sentenced under the Habitual Criminal Act. His conviction was upheld on direct appeal in State v. Cantrell, 201 Kan. 182, 440 P. 2d 580, cert. den. 39, U. S. 944, 21 L. Ed. 2d 282, 89 S. Ct. 315. Subsequently, and in November, 1968, a motion was filed to vacate the sentence. That motion was overruled and on appeal the trial court’s judgment was affirmed. (Cantrell v. State, 206 Kan. 323, 478 P. 2d 192.)
The appellant made an additional collateral attack against his sentence in Cantrell v. Crouse, Case No. L-944, United States District Court, District of Kansas, when he sought a writ of habeas corpus. That writ was denied in January, 1970.
This is appellant’s second motion to vacate his sentence. It was commenced pro se in May, 1971. On November 9, 1971, the district court overruled the motion in a well-written memorandum.
Two contentions are raised on appeal. Both relate to alleged trial errors.
K. S. A. 60-1507 (c) provides that the sentencing court is not required to entertain a second or successive motion for relief by the same prisoner. This court has also held that when a petitioner in answer to question No. 10 of the form prescribed by Rule No. 121 (205 Kan. xlv) sets out a ground or grounds for relief he is presumed to have listed all grounds of relief on which he is relying, (Smith v. State, 195 Kan. 745, 408 P. 2d 647), and a second motion alleging additional grounds may properly be denied. (Fairbanks v. State, 199 Kan. 501, 430 P. 2d 293; Hanes v. State, 196 Kan. 409, 411 P. 2d 646; Smith v. State, supra; Thomas v. State, 199 Kan. 459, 430 P. 2d 268; Cox v. State, 200 Kan. 198, 434 P. 2d 843; Lee v. State, 207 Kan. 185, 483 P. 2d 482.
The judgment is affirmed. | [
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Per Curiam:
Plaintiff-appellant brings this appeal in a personal injury-negligence action wherein the jury returned a general verdict for defendant.
The facts are not in dispute.
The appellee, an eleven-year-old boy, was playing with a toy bow and arrow, the end of the arrow being capped with a rubbed tip. Appellee shot two arrows from the bow at a tree across the street from where he was standing in his parents’ yard to see how far the arrow would travel. The first arrow went in the general direction he was aiming, but the second arrow curved considerably as it flew through the air and struck the appellant in the eye causing serious injury. Appellant was a three-year-old girl who lived across the street from appellee’s home. After appellant was struck appellee observed that there was a slight crook in the arrow. Appellant was not in the area when the first arrow was shot. Appellee saw her in or near the corner of her parents’ yard when he shot the second arrow. He was not aiming in her direction.
Appellant sets out three points relied upon in her appeal. The first is that the verdict is cojitrary to the evidence on the issue of the liability of the appellee. The jury resolved the negligence issue in favor of the appellee by its general verdict, which is supported by substantial competent evidence. On appellate review this court cannot, under the fact situation presented in the record, hold that appellee was negligent as a matter of law.
It is only when minds can reasonably arrive at but one result that the fact issues become questions of law justifying a court in substituting its judgment for that of a jury. (Osborn v. Lesser, 201 Kan. 45, 439 P. 2d 395.)
Appellant’s second point is a contention there should be a distinction between primary and secondary negligence in the degree of care required of a minor. Her third point is a contention that this court should reevaluate its position on the application of the doctrine of dangerous instrumentalities, and hold that a toy bow and arrow is a dangerous instrumentality. Appellant neither objected to the instructions given by the trial court nor made a request for instructions on either of the two points. Neither point was raised by a motion for a directed verdict. Since the questions raised on these points were not presented to or determined by the trial court, this court will not consider them on appellate review. (Schneider v. Washington National Ins. Co., 200 Kan. 380, 437 P. 2d 798; Norris v. Nitsch, 183 Kan. 86, 325 P. 2d 326; Osborn v. Lesser, supra.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
The Board of Education of Haysville Unified School District No. 261, Sedgwick County, Kansas, expelled three students from attending Campus High School until such time as compliance with a hair length regulation was demonstrated. The students, appellants herein, refused to comply and they exhausted those administrative remedies which have been provided by the legislature for suspensions or expulsions. (See K. S. A. 1971 Supp. 72-8901 et seq.) No question is raised concerning the sufficiency of the administrative proceedings afforded these students under the statute. The expulsions were based upon willful violations of school regulations relating to the length of the hair of male students.
The three students filed the present action in the district court seeking to have that part of the school dress code relating to the hair length of male students declared unconstitutional. The trial court denied the relief sought and found from the evidence that the regulation was reasonable and motivated by legitimate school concerns. This appeal followed.
The question posed on appeal is whether a board of education may adopt and enforce by suspension and expulsion a school regulation which relates to the appearance and length of the hair of male students.
Is such a school regulation constitutionally permissible?
We turn to the facts surrounding the adoption of the dress code and the expulsion of these students.
A dress code has existed at Campus High School for many years. The high school is operated by the Board of Education of Haysville Unified School District. As early as 1962, the code restricted the wearing of “extreme hair styles” by male students. For several years preceding the expulsions in this case controversy existed in the Haysville schools concerning a dress code which included the regulation of hair styles. During the summer of 1971, after seeking the advice of legal counsel as to an existing dress code, the school board directed the superintendent of schools to formulate a representative committee of students, parents, teachers and administrators of the district to make specific recommendations to the board concerning a dress code. A committee of twenty was formed. There were five (5) members who were parents of children in school. These were selected by the superintendent from different areas of the school district. Three (3) teachers served on the committee. Five (5) high school students were on the committee. They were members of the Campus High School student council who had previously been elected at large by the student body as their representatives in student government. Three (3) junior high students participated. In addition to the president and vice-president of the junior high school student council, one student was selected at large by the principal. To complete the committee three (3) school administrators and one (1) school board member were selected to serve. A dress code, which included the present male student hair regulation, was formulated and unanimously recommended to the board. This code was adopted by the Board of Education without change on September 27, 1971.
The dress code as recommended and adopted contained the following preamble:
“Appearance, personal and group, is very important. Group appearance is the result of the sum total of each individual’s appearance. Personal appearance includes dress, cleanliness, and the many personal traits which can be controlled for all occasions. Attending school is a business; it is the work in which students are engaged. All students will be expected to be clean, well-groomed and decently covered when they attend school.”
As to the hair of girls the code provided:
“Hair must be styled or arranged so as not to cover the eyes.”
As to the hair of boys the code provided:
“Sideburns, moustaches, and beards are acceptable if kept clean, well-groomed, and of moderate length.
“Boys hair shall be no longer than the bottom of the ear lobes on the sides and no longer than the bottom of a dress shirt collar in the back when the boy is standing. Hair must be kept clean, well-groomed, and out of the eyes at all times.”
Under the dress code forms of writing, lettering and factory printing on clothing were acceptable “if in good taste.” Blouses and shirts had to be tucked in, unless they were square cut and no longer than wrist length when standing. Every student was required to wear footwear. Hats and caps were not to be worn in the buildings without office permission. Cut-off and frayed shorts were not acceptable. The code permitted the coaches to modify the code as to students engaged in sports.
After the code was adopted twenty boys in Campus High School were advised by the principal that they were in violation of the rules on the style of hair and were given a reasonable time to comply. (There were approximately 540 boys and 560 girls attending classes at Campus High School during the 71-72 school year.) Of the twenty boys not in compliance with the hair regulation all except four of the boys did comply. Three of the boys who refused to comply are the appellants herein.
On refusing to comply appellants were first suspended and later expelled by the board. At each of the administrative hearings held in accordance with K. S. A. 1971 Supp. 72-8901 et seq., the students stipulated that the length of their hair was in violation of the provisions of the dress code. There can be no question the grounds for suspension specified in K. S. A. 1971 Supp. 72-8901 (a) were established by the board. There was a willful violation on the part of these students of a published regulation for student conduct adopted and approved by the board of education.
Article 6 of the Constitution of the State of Kansas in part provides:
Ҥ 1. Schools and related institutions and activities. The legislature shall provide for intellectual, educational, vocational and scientific improvement by establishing and maintaining public schools, educational institutions and related activities which may be organized and changed in such manner as may be provided by law.
“§ 5. Local public schools. Local public schools under the general supervision of the state board of education shall be maintained, developed and operated by locally elected boards. . . .”
Opportunity of education, where the state has undertaken to provide it, must be made available to all on equal terms. (Brown v. Board of Education of Topeka, 347 U. S. 483, 98 L. Ed. 873, 74 S. Ct. 686, 38 A. L. R. 2d 1180.) The legislature of this state in compliance with the constitutional mandate has established a system of local public schools which are placed under the supervision of locally elected boards of education. These boards are invested with authority to operate the schools, to provide rules and regulations to govern the learning process, subject, however, to the recommendations of the state board of education and the statutes of this state. (See K. S. A. 1971 Supp. 72-8205.) The legislature has authorized the local board to suspend and expel students in certain specified instances.
K. S. A. 1971 Supp. 72-8901 provides:
“The board of education of any school district may suspend or expel, or by regulation authorize any certificated employee or committee of certificated employees to suspend or expel, any pupil or student guilty of any of the following:
“(a) Willful violation of any published regulation for student conduct adopted or approved by the board of education, or
“(b) conduct which substantially disrupts, impedes or interferes with the operation of any public school, or
“(c) conduct which substantially impinges upon or invades the rights of others, or
“(d) conduct which has resulted in conviction of the pupil or student of any offense specified in chapter 21 of the Kansas Statutes Annotated or any criminal statute of the United States, or
“(e) disobedience of an order of a teacher, peace officer, school security officer or other school authority, when such disobedience can reasonably be anticipated to result in disorder, disruption or interference with the operation of any public school or substantial and material impingement upon or invasion of the rights of others.”
The act limits the period of expulsion, requires that the board afford the student a due process hearing and provides for a record of the testimony at the hearing.
In the present case the only conduct proscribed by the act with which we are presently concerned is covered in paragraph (a), willful violation of a published regulation.
The students contend in this appeal that the dress code of the Haysville Unified School District as enacted and adopted violates their individual rights under the Constitution of the United States. They argue: (1) It deprives them of liberty in controlling their personal appearance in violation of the 5th, 9th and 14th Amendments. (2) It takes their personal property without sufficient state justification in violation of the 14th Amendment. (3) It denies them equal protection of the law and discriminates between male and female students in violation of the 14th Amendment. (4) It violates freedom of speech under the 1st Amendment in that long hair is symbolic speech and an expression of non-conformity.
The parties to this appeal cite many cases which have been de cided by the federal district and circuit courts relating to “hair regulation cases”. We have found additional cases emanating from the federal courts. Our research indicates that no fewer than 78 “hair regulation cases” have been heard, recorded, appealed, researched, briefed, argued, decided, written and reported in the case law of this nation.
After reading and studying the federal case law, including orders of the Supreme Court of the United States, some comments are in order.
The federal circuit courts cannot agree that the right of a male student to wear his hair on his shoulders is a federally protected right under the United States Constitution. (See discussion of cases in Bishop v. Colaw, 450 F. 2d 1069, and Karr v. Schmidt, 460 F. 2d 609.) Even the circuit courts which hold it to be a federally protected right cannot agree which amendment supports the right. (See discussion of cases in Richards v. Thurston, 424 F. 2d 1281, at p. 1283.) Other circuit courts have adopted and applied what might be referred to as a rule of abstention in student “hair regulation cases”. (See Freeman v. Flake, 448 F. 2d 258 [10 CA. 1971], and Valdes v. Monroe County Board of Public Instruction, 325 F. Supp. 572.) These latter courts indicate the right does not rise to a level of fundamental significance which would warrant recognition as a substantive constitutional right; said right may be subjected to regulation, and regulation should be left to the local states in which the school systems are operated and maintained. We agree with the cases which are cited last.
In denying a motion to vacate which sought to reinstate an injunction against a school hair regulation Mr. Justice Black in Karr v. Schmidt, 401 U. S. 1201, 27 L. Ed. 2d 797, 91 S. Ct. 592, stated:
“I refuse to hold for myself that the federal courts have constitutional power to interfere in this way with the public school system operated by the States. And I furthermore refuse to predict that our Court will hold they have such power. It is true that we have held that this Court does have power under the Fourteenth Amendment to bar state public schools from discriminating against Negro students on account of their race but we did so by virtue of a direct, positive command in the Fourteenth Amendment, which, like the other Civil War Amendments, was primarily designed to outlaw racial discrimination by the States. There is no such direct, positive command about local school rules with reference to the length of hair state school students must have. And I cannot now predict this Court will hold that the more or less vague terms of either the Due Process or Equal Protection Clause have robbed the States of their traditionally recognized power to run their school systems in accordance with their own best judgment as to the appropriate length of hair for students.” (p. 1202.)
The motion in Karr was later examined and denied by the whole court without additional comment. (See Karr v. Schmidt, 401 U. S. 930, 28 L. Ed. 2d 211, 91 S. Ct. 914.) The high court has consistently refused to examine these cases. (See Pope v. Haimowitz and Spillers v. Slaughter, 401 U. S. 930, 28 L. Ed. 2d 211, 91 S. Ct. 914; and Olff v. East Side Union High School District, 404 U. S. 1042, 30 L. Ed. 2d 736, 92 S. Ct. 703.)
In Olff Mr. Justice Douglas, dissenting forcefully, states the case for the students.
Our examination of the briefs in the present case and of the federal case law in this area convinces this court it should not enter the tangled thicket of federal constitutional law which has suddenly sprouted and grown from what may appear to us personally to be seeds of protest against society in the form of hair styles originating among the younger generation. Such changes in hair style and personal appearance by dissidents have many times brought change in the customs and mores of a society as may be attested by reading world history.
We decline, however, to enunciate either the nature or source of a person s privilege in this country to govern his own appearance and hair style. As we view the question presented the exact source of that privilege does not bear upon an ultimate decision in the case. A student has a right to govern his own personal appearance but the state has a countervailing interest in providing public education for all students, and on proper showing that state interest may justify intrusion upon the student’s individual right.
When the due process hearing, provided by K. S. A. 1971 Supp. 72-8901 et seq., has been afforded the student and it is stipulated the student did willfully violate a published regulation for student conduct adopted by the board of education, the sole remaining question is whether the regulation is constitutionally permissible.
So in the present case the question is not whether the male student hair regulation is constitutionally permissible as to a particular student or under a particular set of facts involving a particular student. The question is much broader and relates to the circumstances existing at the particular school facility where the regulation was legislated. The only factual issue to be resolved is whether the board of education has shown a reasonable justification, in terms of the general educational process or the disciplinary problems at the school facility sufficient to justify the regulation as one with a rational school purpose. Its adoption must be motivated by legitimate school concerns. It must not be arbitrary, capricious or unreasonable and it must not be unfairly or discriminately enforced.
With that perspective we turn to the question: Is the present regulation a reasonable school regulation for Campus High School?
The fact that students, parents, administrators and school board members participated in drafting a school dress code which was adopted by the board of education and approved by a majority of the students does not per se make the regulation reasonable. The fact that a challenged plan is approved by the electorate is without constitutional significance. (Lucas v. Colorado Gen. Assembly, 377 U. S. 713, 12 L. Ed. 2d 632, 84 S. Ct. 1459.) It bears only upon the good faith of the board in adopting and enforcing such a regulation.
A school regulation must not be oppressive or unreasonable. A regulation to be reasonable must be a proper one to further the educational processes in the school and the means adopted to accomplish a purpose must be appropriate to accomplish the educational mission.
Similar constitutional protections limit the authority of a city to pass city ordinances under the police power. (See Grigsby v. Mitchum, 191 Kan. 293, 380 P. 2d 363, cert. den. 375 U. S. 966, 11 L. Ed. 2d 415, 84 S. Ct. 483, and City of Lyons v. Suttle, 209 Kan. 735, 498 P. 2d 9.)
Governmental regulation may be unconstitutional per se if it discriminates on the basis of race, creed or wealth. In State v. Smith, 155 Kan. 588, 127 P. 2d 518, 141 A. L. R. 1023, this court struck down a statute as well as a school regulation by which a school board attempted to justify expelling children from school because of sincere religious beliefs. The students and their parents refused to salute the flag of the United States of America. It was held that public schools are required to afford educational facilities and training to all pupils of the state without regard to their race, creed or wealth.
However, the limitation placed upon the students in the present case does not fall in this category.
We turn now to the evidence before the trial court. It was stipulated by the parties that during several years preceding the adoption of the present student hair regulation much controversy ex isted among the parents, students and administrators within the Haysville school district over dress and hair styles.
The three students testified generally that female students were permitted to wear their hair longer than the boys. They knew of no disturbance or distraction among the students arising from the length of their own hair. On one occasion after their expulsion they came to school to get their assignments and books and some three or four other students talked to them while on campus but there was no commotion or disturbance. One of the officials ordered the students who had assembled back to their classes. Each of the appellants was given an opportunity by the principal to comply with the hair regulation. One of the students testified he was offended by a statement by one of his teachers to the effect that the teacher couldn’t tell the girls from the boys. A request for transfer to another class was made and granted.
The offending teacher testified he did not direct the joke to any particular individual. He was in favor of the hair regulation. If the boys wore hair long on the sides or over their eyes it was difficult to supervise class work and determine whether each student did his own work or copied from another student’s work. He testified it was hard for him to say that any particular hair style distracted the teacher or the student. He indicated that long hair on boys might be considered symbolic as a display against the establishment. He was testifying generally about students when he stated:
“Oh, I’ve seen some of them do things. In fact, I feel sorry for the administration if — a case like this isn’t upheld. Because we see them sitting around on lockers or radiators or on top of lockers or walking across the grass. They do — you don’t protect us in this instance, then we won’t have any hold on them otherwise. This is an issue more than just long hair, the way I feel.”
A teacher in the metal shop testified long hair was a safety problem in his classes. He asked his students to wear head bands and this helped but was not a complete answer to the safety problem. The students had trouble in putting on their safety hoods if their hair was long. No accidents had occurred in his classes because of long hair. Only one of the appellants was in his classes.
The principal at Campus High School held a B. S. degree, a master’s degree and a school administrator’s certificate. He had previously been a classroom teacher for eight years. He testified that he had no .disciplinary conferences with the appellants during the 1971 school year except for hair length. In the year preceding, Kenny Luginbill had one conference on truancy and two confer enees on hair length and moustache. Steve Blaine had three conferences on hair length and one on discipline in an art class. He further testified that extremes in hair style and clothing among high school students have the potential to disrupt education in school by distracting the student and the teacher. Such extremes foster discussions among the students, teachers and administrators. Students try to outdo each other and gain attention. Time and attention which should be spent in education is lost in discussions concerning the appearance of students competing for personal attention while attending school. He testified the attitudes of the students toward the school and the faculty were important to the educational mission of the school and that pride in the overall appearance of the student body and faculty had a beneficial effect on the total operation of the school.
He further testified the misconduct of students in Campus High School was not limited to violations of the dress code but that much of his time in disciplining the students related to hair styles. He testified he could operate the school without the dress code, but with difficulty. The difficulties mentioned were problems in the industrial classes, problems in some classrooms, problems in physical education classes, and problems with “show-through” clothing and no shoes. In his opinion as an administrator the quality of education and learning in the school would go down if the dress code was not in force. Extreme fads caused student and teacher distraction which caused disruption of the learning processes. He felt the hair regulation was reasonable.
The superintendent of the Haysville district testified he had served fourteen years as a teacher, principal, administrator and superintendent. He held a doctor’s degree in education. He testified the quality of education in a high school is determined by many elements and one of these elements relates to the appearance of both teachers and students. It was his opinion the quality of education in a high school is hampered by permitting extremes in clothing or hair. He explained that even an extreme use of perfume or lotion distracted other students from their studies and the quality of their education might deteriorate. He further testified that extreme hair styles among male students resulted in preoccupation over their hair. Constant combing of the hair was prevalent among such boys. The girls did not comb their hair as much. The reason given to justify permitting long hair on girls and not on boys was the difference in tifie effect on the general student body. Long hair on girls was normal and did not distract other students. Extreme hair styles on boys attracted attention and resulted in distraction, discussions and disruptions in school. The present regulation, in his opinion, was reasonable.
There was no evidence that the board or the school officials acted in an arbitrary or capricious manner in enforcing the hair length regulation. All male students were required to comply with the rules and all were notified and given a chance to comply before suspension.
After reading the record there is no question in our minds that much time has been spent by the school officials at Campus High School in adopting and policing the dress code. There is some uncertainty in our minds as to whether problems of behavior and discipline necessitated the dress code or whether the enforcement of the dress code merely contributed to the problems of behavior and discipline. However, we are limited to the evidence in the record. There was substantial evidence adduced in the trial court that the object of the regulation was a proper one to further the educational mission of the school. The means adopted to accomplish this educational purpose was not oppressive or unreasonable and it seems appropriate to accomplish a legitimate educational mission.
Boards of education are given an important role in the training and education of our children. The high school education mission requires that hundreds of immature, volatile and aggressive adolescents be brought together in confined quarters. Most of these youth are seeking their own identity as well as an education. If a suitable atmosphere for instruction, study and concentration is to be provided, the students and the teachers must be subjected to a wide variety of disciplinary rules. For many adolescents learning is a discipline rather than a pleasure and it must be carried on in dignified and orderly surroundings if it is to be practiced satisfactorily. Obedience to duly constituted authority and respect for those in authority should be instilled in young people.
In measuring the appropriateness and reasonableness of school regulations against the personal rights of the individual student, courts should give full credence to the role and purposes of the schools as well as the nature of the problems inherent in the public education of our youth. Careful recognition should be given to differences between what are reasonable restraints in the public classroom and what are reasonable restraints on a non-student on the public street corner. (See Gere v. Stanley, 320 F. Supp. 852 [M. D. Pa. 1970], affirmed 453 F. 2d 205 [3rd Cir.].)
The responsibility for maintaining proper standards for learning and discipline, and for creating a wholesome academic environment in our public schools is vested in the local boards of education, consistent with fundamental constitutional safeguards; and it is not in the courts. If the testimony of the school administrators in this case is not sufficient to show a rational purpose for this regulation then it would appear equally difficult for the board of education to establish a rational purpose in the educational processes to require students to wear shoes or to prohibit them from wearing hats and caps in buildings or from chewing bubble gum in the classroom.
The evidence before the trial court supports its finding and conclusion that extreme hair styles of male students at Campus High School distracts other students, disrupts classroom atmosphere and decorum, and interferes with the educational process. The regulation limiting extreme hair styles of male students appears to have a rational purpose with substantial support in the evidence.
Findings of fact in the district court based upon substantial evidence will not be disturbed on appeal unless they are clearly erroneous. (See Hatcher’s Kansas Digest [Rev. Ed.], Appeal and Error, §507.)
The means adopted to accomplish the educational purpose in the present case appears to be appropriate for Campus High School. The regulation was not unduly oppressive or unreasonable. The regulation was evenly enforced as to all male students. There was no discrimination as to these particular appellants.
In the final analysis the framers of the Kansas Constitution provided in Article 6, § 5 for public schools to be operated by locally elected boards. The legislature has authorized these locally elected boards to adopt reasonable regulations to carry out their educational mission. The local problems in carrying out the educational mission may vary widely depending on the location of the districts and the background of the people in that .district. When as here the finding of reasonableness of a school regulation is supported by some substantial evidence this court should not substitute its judgment for that of the district court and the board.
The judgment is affirmed. | [
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Per Curiam:
This is an action for damages brought by the plaintiff-appellee, James E. Higgs, against the defendant-appellant, Phillip J. Biemacki, arising from a collision between two motor vehicles. The case was tried to a jury.
At the conclusion of the evidence, the plaintiff moved for a directed verdict on the issue of liability and to submit only the issue of damages to the jury. The defendant moved for a directed verdict on the ground that the plaintiff was guilty of contributory negligence as a matter of law. The court stated, “The court believes that as a matter of law the defendant is guilty of negligence and that as a matter of law the plaintiff is not guilty of contributory negligence. I am going to reserve ruling on this point and let the matter go to the jury and after we have the jury’s verdict, I will rule on the motion.”
Five special questions were submitted to the jury with no general verdict. The case went to the jury at 8:05 p. m. and answers to the special questions were returned at 11:45 p. m. The jury answered questions 1 and 3 stating that neither defendant nor plaintiff was guilty of any acts of negligence that were a proximate cause of the collision. Question 5 asked: “What amount of damages, if any, did the plaintiff suffer as result of the collision involved?” The jury answered, “None.” The court directed the jury to answer question 5 regardless of the answers made to the other questions.
Plaintiff moved for a mistrial, which the court denied. There being no verdict of damages, the court instructed the jury to continue deliberations and to answer the damage question. The jury deliberated from 11:55 p. m. until 1:05 a. m., at which time the court released them for the night. The jury returned at 9:50 a. m. and resumed deliberations until 11:35 a. m. They reported to the court they could not agree on the amount of plaintiff’s damages. The court at 11:38 a. m. ordered the jury to retire and consider the matter further. At 12:06 p. m., the jury returned and answered question number 5 by stating plaintiff’s damages to be $20,000. At that time the court stated, “For the record, I am going to accept this verdict, but no judgment will be entered at this time.” At no place in the record does it show that the answers to special questions returned by the jury were ever approved by the trial court. Further, at no place in the record is it shown that any final judgment has ever been entered by the trial court.
The court in its order granting a new trial on all issues stated, “The court feels that it committed error in holding the jury’s feet to the fire in requiring a determination of the amount of damages when the jury was obviously reluctant to determine damages and had disobeyed a direct instruction to do so. The court feels it should have granted plaintiff’s motion for a mistrial. The court is therefore declaring a mistrial and ordering that the case be retried because of the erroneous rulings of the court in not declaring a mistrial. . . .”
A new trial may be granted by the court under K. S. A. 1971 Supp. 60-259 for erroneous rulings of the court or if the verdict was given under the influence of passion. The court in its discretion may grant the pending motion upon grounds not stated by the moving party, and in that case the court shall specify the grounds in its order or the court may grant the motion on its own initiative not later than ten days after an entry of judgment for any reason which it might have granted a new trial on motion of a party and in the order shall specify the grounds therefor. The court specified that it had made erroneous rulings and that the verdict, or a portion thereof, was given under the influence of passion or coercion. The court’s statements specifically give the reasons for granting a new trial and are in compliance with the statute.
In Landscape Development Co. v. Kansas City P. & L. Co., 197 Kan. 126, 415 P. 2d 398, at page 134, we stated:
“. . . While a trial court still has a high duty to grant a new trial on its own initiative when it disapproves the verdict, its disapproval must be bottomed on one of the statutory grounds, and its reasons therefor must be set out in its order specifically, not generally . .
The trial court having determined that it had erred in failing to grant a mistrial and in coercing the jury properly granted a new trial.
With certain exceptions not applicable here K. S. A. 60-2102 limits the scope of this court’s appellate jurisdiction in civil actions to appeals from final decisions of the district court.
No final judgment was ever entered by the district court in this case. There is no final decision from which the appellant-defendant could appeal. The appeal should therefore be dismissed for lack of jurisdiction.
Appeal dismissed. | [
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